develop a legal, procedural<sup>198</sup> and administrative framework, alongside specific actions by the State for establishing prevention measures in case of a risk.

**4. Scholarly perspectives on discrimination**

Scholars have underlined that in the social sciences, the concept of minority refers to individuals who have a lower position and exercise less power in society. Interestingly, the concept of minority groups has developed and gained importance in the 20<sup>th</sup> century under the thrust of civil and collective rights movements. In certain countries this position has resulted in practices of discrimination, as individuals are perceived only through their membership of a minority group, and not with respect to their personal achievements.

Analysing caste discrimination underlines a more general element: the impact of individuals classification on their exclusion from society. Discrimination relies on this core element of the exclusion of groups from social spheres. In fact, economist Amartya Sen highlights the active exclusionary dimension of the caste system, which consists of government or private agencies blocking opportunities for certain castes.<sup>199</sup> Sen underlines the eliminatory consequences of such active exclusion, and the fact that individuals are affected by these policies.<sup>200</sup> Thorat and Newman, reflecting on the problems of “Caste and Economic Discrimination” (2007) refer to Sen’s 2000 article, to argue that active exclusion through discrimination enables agents to practice a systematic refusal in hiring individuals of a particular social group, even though they may be qualified and possess the required skills to do the job.<sup>201</sup> Similar forms of discrimination are found outside India, ranging from injustice, socio-economic discrimination, and even participation in public and political life.<sup>202</sup>

<footnote n="198"><sup>198</sup> Have a procedure which allows individuals to complain about their human rights violations. Xákmok Kásek
*Indigenous Community v Paraguay* (n 156) para 141.</footnote>

<footnote n="199"><sup>199</sup> Amartya Sen, ‘Social Exclusion: Concept, Application and Scrutiny’ (2000) 1 Office of Environment and Social Development, Asian Development Bank, Social Development Papers 1, 16.</footnote>

<footnote n="200"><sup>200</sup> ibid 20.</footnote>

<footnote n="201"><sup>201</sup> Sukhadeo Thorat and Katherine S Newman, ‘Caste and Economic Discrimination: Causes, Consequences and Remedies’ (2007) 42 EPW 4121, 4121–4122.</footnote>

<footnote n="202"><sup>202</sup> Kevin Brown and others, ‘Caste Discrimination Outside India: Caste as a Protected Characteristic in UK and US Antidiscrimination Law’ (Law Faculty Equality and Diversity, 13 May 2021); Isabel Wilkerson, *Caste: The Lies That Divide Us* (Penguin 2020); Li-ann Thio, ‘Battling Balkanization: Regional Approaches toward Minority</footnote>
This type of discrimination has been highlighted in the U.S through the angle of race,<fnref n="203" /> and in India, through the caste system.<fnref n="204" /> Although the Indian constitution declares untouchability illegal (Article 17), discrimination based on caste remains an important aspect of social functioning.<fnref n="205" /> Some disagreements have been expressed on the centrality of caste in modern Indian society. M. N. Srinivas, noted for his anthropological and sociological case studies and fieldwork on the caste system, argued that the social hierarchy of the caste system was being destroyed by the concepts of democracy, equality, and individual self-respect, and that a shift from status to contract was taking place in rural Indian societies.<fnref n="206" />

Scholars have examined the Indian caste system from the economic angle: they see it as based on a hierarchical division of the population, determined by birth and heredity, into social groups, which consequently determines the economic rights of the caste members.<fnref n="207" /> This division of society increases discrimination towards minority groups like Dalits<fnref n="208" />, also characterised as Depressed Classes under the British Raj, and Schedule Castes in the Indian Constitution and the Indian Census, as they lie at the bottom of the social order, following old traditions and practices of economic, social, historical and cultural exclusion. According to

<footnote>Protection beyond Europe' (2002) 43 Harv. Int. Law J. 409; Aftab Alam, 'Minority Rights under International Law' (2015) 57 JILI 376, 383.</footnote>

<footnote n="203">²⁰³ Devah Pager, 'The Mark of a Criminal Record' (2003) 108 Am. J. Sociol. 937.</footnote>

<footnote n="204">²⁰⁴ Thomas Weisskopf, *Affirmative Action in the United States and India: A Comparative Perspective* (Routledge 2004); Sukhadeo Thorat, Aryama and Negi Prashant, *Reservation and Private Sector, India* (Rawat 2005).</footnote>

<footnote n="205">²⁰⁵ In the Tokyo Olympics game 2021, India women's hockey teamed lost at the semi-final to Argentina. In reaction to this result, upper caste individuals verbally abused one of the Dalit players family, Vandana Katariya, using slurs and saying how the "Indian team lost because of too many Dalits" in the team. Support in favor Vandana Katariya was rapidly found on twitter, with the #supportVandanaKatariya. MS Nawaz, 'Vandana Katariya: Casteist Slurs, Abuses Thrown at Olympic Star Vandana Katariya's Family' *The Times of India* (5 August 2021).</footnote>

<footnote n="206">²⁰⁶ Mysore Narasimhachar Srinivas, 'An Obituary on Caste as a System' (2003) 38 EPW 455, 459.</footnote>

<footnote n="207">²⁰⁷ George Akerlof, 'The Economics of Caste and of the Rat Race and Other Woeful Tales' (1976) 90 The Quarterly Journal of Economics 599; James Scoville, 'Towards a Model of Caste Economy' in James Scoville (ed), *Status Influences in Third World Labour Markets Caste, Gender and Custom* (Walter de Gruyter 1991); Deepak Lal, *The Hindu Equilibrium*, vol I: Cultural Stability and Economic Stagnation-India c. 1500 B.C.-A.D. 1980 (Clarendon Press 1989); Bhimrao Ramji Ambedkar, 'Philosophy of Hinduism' in Vasant Moon (ed), *Dr Bbasaheb Ambedkar: Writings and Speeches*, vol 3 (Department of Education, Government of Maharashtra, Bombay 1987); Kaivan Munshi, 'Caste and the Indian Economy' (2019) 57 JEL 781.</footnote>

<footnote n="208">²⁰⁸ 'Caste-Based Discrimination in South Asia: Situational Overview, Responses and Ways Fordward' (Study commissioned by the European Commission to the International Dalit Solidarity Network 2009).</footnote>
human development criteria, this group consists of the poorest in Indian society. The different reports of the National Commission for Scheduled Tribes highlighted the discrimination faced by the Scheduled Castes and Tribes in India.

Three points have been identified to demonstrate the economic exclusion and discrimination of Dalits by Sukhadeo Thorat in *Dalits in India* (2009): firstly, in finding employment, buying agricultural land, accessing education, housing, and health; secondly, Brahminical Hindu tradition held that Dalits could not work in other caste occupations, and they thus face a further form of exclusion; thirdly, they are not only subjected to a difference in salaries within the job market, but also on the price of land, houses, and services (water and electricity).<fnref n="209" /> According to ActionAid, in 11 Indian States, in 24.5% of the villages, Dalits are subject to discrimination in their salary and are paid less for the same work.<fnref n="210" /> Sagarika Ghose too points out this form of discrimination in the job market: “He is generally never a member of the higher judiciary, an eminent lawyer, industrialist or journalist”.<fnref n="211" /> This conclusion remains valid, despite some prominent examples of lower caste individuals occupying positions of power in private companies or in the government. Notable examples are Jagjivan Ram, who held various portfolios in Indian cabinets (1946-1979), Meira Kumar (Ram's daughter), the Speaker of the Lok Sabha (2009-2014), and K.R. Narayanan (1997-2002), Ram Nath Kovind (2017-2022) and Droupadi Murmu since 2022, who have served as presidents of India. However, such figures intended to demonstrate the success of state policies of reservation remain an “alibi”, to use Simone de Beauvoir’s words.<fnref n="212" /> As she noted, the professional success and visibility of certain women held out the hope that it was possible for all women to attain similar positions, masking the deep inequalities, which women experienced, and which denied them the development of their capacities and their potential. On the larger scale, the insidious and everyday discrimination and violence faced by Dalit groups continues and is testified by recent crimes such as the Hathras rape case.<fnref n="213" />

<footnote n="209">209 Sukhadeo Thorat, *Dalits in India - Search for a Common Destiny* (SAGE Publications India Pvt Ltd 2009) 139.</footnote>

<footnote n="210">210 ibid 140; Ghanshyam Shah and others, *Untouchability in Rural India* (SAGE Publications India Pvt Ltd 2006).</footnote>

<footnote n="211">211 Sagarika Ghose, ‘The Dalit in India’ (2003) 70 Social Research 83, 83; AM Shah, ‘Caste in the 21st Century: From System to Elements’ (2007) 42 EPW 109.</footnote>

<footnote n="212">212 Pierre Viansson-Ponté, ‘Simone de Beauvoir au «monde», en 1978 : «J’ai cru trop vite à une proche victoire des femmes»’ *Le Monde* (8 March 2019).</footnote>

<footnote n="213">213 ‘Ethos of Justice and Its Adversaries’ (2015) 55 EPW 7.</footnote>
**5. Conclusion**

Human rights bodies established multiplied criteria to determine discrimination between
persons in similar situations, whose differential treatment cannot be objectively and rationally
justified.<fnref n="214" />

At the simplest level, discrimination can be understood as the violation of the basic
principle that all persons should be treated equally in equal circumstances. It can be grounded
on various protected characteristics such as race, ethnicity or nationality, gender and sex, sexual
orientation, language, religion or opinions, birth, economic situation, disability or illness, or
even age. The complexity of discrimination is heightened by the intersectionality of these
categories and social experiences.<fnref n="215" /> As victims of discriminatory legislation, minorities find
themselves affected in their public and personal lives both through social practices and legal
policies.

<footnote n="214">214 Hennebel and Tigroudja, *Traité* (n 149) 761.</footnote>

<footnote n="215">215 Eero Olli and Birgitte Olsen, 'Towards Common Measures for Discrimination II - Recommendations for Improving Measurement of Discrimination' (European Commission 2006).</footnote>
**Chapter 3. Assam in academic discourse: a review of existing
literature**

Current human rights violations in Assam centred on depriving citizens of their nationality cannot be understood without considering the region's ethno-geopolitical history. Nationality issues and ethnic diversity in Assam results from administrative changes under the colonial period, geopolitical reorganisation after Partition, and the successive movements of population from Bengal and Bangladesh. These three successive periods of change have shaped the actual problem of citizenship in Assam, embroiling it with questions such as identifying foreigners, or deciding the legitimacy of different ethnic claims to ownership of land and belonging.

The determination of nationality issues is analysed through two angles: ethnic affiliation and citizenship. Common to both are political developments. Works undertaken by Indian political and social scientists accord centrality to government policies and approaches to the region after independence. Analysing this aspect is critical to understanding the contemporary violations of the right to nationality in Assam.

**1. Ethnicity in Assam**

Until the 1920s, ethnicity was described by anthropologists as a “primordial identity”, “given at birth” and considered a permanent feature.<fnref n="216" /> After the 1950s, social sciences argued that ethnicity was not primordial but, on the contrary, subject to change, and though culturally defined, changeable, and politically manipulable.<fnref n="217" /> As sociologist Wsevolod Isajiw

<footnote n="216">216 Clifford Geertz, 'The Integrative Revolution: Primordial Sentiments and Civil Politics in the New States' in Clifford Geertz (ed), *Old Societies and New States* (Free Press 1963) 105–157; Harold Isaacs, 'Basic Group Identity: The Idols of the Tribe' in N Glazer and DP Moynihan (eds), *Ethnicity: Theory and Experience* (Harvard University Press 1975) 29–52; Pierre L van den Berghe, 'Race and Ethnicity: A Sociobiological Perspective' (1978) 1 Ethn. Racial Stud. 401, 401; John F Stack (ed), *The Primordial Challenge* (Wesport, CT: Greenwood Press 1986).</footnote>

<footnote n="217">²¹⁷ See: Fredrik Barth (ed), *Ethnic Groups and Boundaries: The Social Organization of Culture Difference* (George Allen and Unwin 1969).</footnote>
highlighted, we are not faced with a case where an ethnic group precedes ethnicity,<fnref n="218" /> but rather
as anthropologist Jack David Eller underlined, ethnicity is rather the process which gives rise
to ethnic groups.<fnref n="219" />

Since the 19th century, historians, anthropologists and sociologist have analysed Assam's
ethnic diversity through three prisms: (i) a long-term perspective and historical approach,
emphasizing British colonial administrative decisions in shaping quarrels of belonging and
status; (ii) the complex issue of population migration into the region; and (iii) the ethnic
conflicts between groups.

1.1. Colonial interventions in the ethnic landscape

In Assam, ethnic complexity is multiplied by the entry of waves of culturally diverse
groups going back to the 8th century. Academics have analysed the region's ethnic landscape
before the arrival of British in the region.<fnref n="220" /> The historian Barpujari describes Northeast India
as a significant crossroads of migration routes,<fnref n="221" /> also known as the Assam-Burma routes.<fnref n="222" />
Barpujari and Hazarika look at the historical roots of migration, from the penetration by the Tai
into the Brahmaputra Valley in the 8th century to the expansion of the Ahom kingdom in
1512.<fnref n="223" />

However, no work on Assam’s complex citizenship question can ignore the critical
actions of the colonial government, which shaped the relations between hills and plains, sowing
the seeds of future troubled relations. Queen Victoria’s promise in 1858 of non-interference in

<footnote n="218">²¹⁸ Wsevolod W Isajiw, 'Definition and Dimensions of Ethnicity: A Theoretical Framework' (Joint Canada-United States Conference on the Measurement of Ethnicity, Ottawa, Ontario, Canada, 2 April 1992) 5.</footnote>

<footnote n="219">²¹⁹ Jack David Eller, 'Ethnicity, Culture, and “The Past”' (1997) 36 MQR.</footnote>

<footnote n="220">²²⁰ Udayon Misra, 'Immigration and Identity Transformation in Assam' (1999) 34 EPW 1264, 1264–1265.</footnote>

<footnote n="221">²²¹ HK Barpujari, *The Comprehensive History of Assam Vol. II Medieval Period: Political From Thirteenth Century A.D. To the Treaty of Yandabo 1826* (Publication Board Assam 1992) 35.</footnote>

<footnote n="222">²²² Jaysankar Hazarika, *Geopolitics of North-East India: A Strategical Study* (Gyan Publishing House 1996) 41.</footnote>

<footnote n="223">²²³ ibid 59.</footnote>
the customs, traditions and social practices of her Indian subjects,<fnref n="224" /> created the necessary conditions for preserving ethnic identities, which Max Weber and sociologists since have characterized as a shared belief in their origins, religion, language, or common cultural practices.<fnref n="225" />

One of the earliest works on the question of British colonisation of the region by an administrator, Alexander Mackenzie, offers a good description of British imperial imperatives and concerns about fixing the loose-knit society of this region.<fnref n="226" /> Assam's creation as a province in 1874 distinguished undeveloped tribal tracts from the rest of the region. Further, an inner line system that required a permit to cross introduced a first bureaucratic impediment to movement and erected both physical and cultural barriers between the hills and the plains. Thus, administrative policies during colonisation, and socio-economic factors encouraged ethnic groups to retain their distinctiveness and not let themselves be absorbed into the dominant and unique 'Axamiya' identity.<fnref n="227" /> No official definition exists for this concept, yet it resonates with an ethnic identity among residents of Assam. It often refers to the Assamese community whose mother tongue is Assamese.<fnref n="228" />

This stratification of ethnic groups was exacerbated by the administrative impact of colonial policies.

Firstly, due to the changing status of the hill areas, from tribal, to backward (1919), to 'excluded or partly excluded' (1936).<fnref n="229" /> This reinforced their linguistic, cultural separation from the plains' populations. The colonial anthropological approach determined the status of different communities, determining the range of their rights related to cultivation, land ownership, forest

<footnote n="224">²²⁴ Proclamation by the Queen in Council to the Princes, Chiefs and people of India 1858.</footnote>

<footnote n="225">²²⁵ Max Weber, *Economy and Society: An Outline of Interpretive Sociology* (Roth Guenther and Wittich Claus eds, Bedminster Press 1968) 389; Rodolfo Stavenhagen, *Problèmes et perspectives des États à ethnies multiples: conference donnée le 27 mars 1986 a Lomé, Togo* (Université des Nations Unies 1986) 4.</footnote>

<footnote n="226">²²⁶ Alexander Mackenzie, *A History of the Relations of the Government with the Hill Tribes of the North-East Frontier of Bengal* (1884).</footnote>

<footnote n="227">²²⁷ Uddipana Goswami, *Conflict and Reconciliation: The Politics of Ethnicity in Assam* (Routledge India 2014) 68.</footnote>

<footnote n="228">²²⁸ Kasturi Bharadwaj, ‘Ethnicity in Assam: Understanding the Complexities of Ethnic Identities and Conflicts’ (2016) 62 Indian Journal of Public Administration 546, 549.</footnote>

<footnote n="229">²²⁹ ML Bose, *Development of Administration in Assam: With Special Reference to Land Revenue Justice and Police 1874-1920* (Concept Publishing Company Pvt Ltd 2010) 1874–1920.</footnote>
access, or development of professional skills, level of education and exercise of power. It increased traditional discontent and animosity amongst indigenous populations against Bengalis. Already in the second half of the 20th century a differentiated landscape was being defined of who had right to what, depending on their geographical locations in the hills or in the plains.

Secondly, the colonial government, or what anthropologist Nicholas Dirks has termed “ethnographic state”, defined the rights of populations categorised according to their customs, kinship behaviours or rituals.230 Under the larger discursive frames of savages and primitives, the population was divided into castes and tribes. Manasjyoti Bordoloi underlines how colonial policy targeted two distinct groups of migrants and tribes, leading to substantial demographic changes.231 This increased with the 1873 Bengal Eastern Frontier Regulation. Bordoloi argues that this created a new internal frontier, or an Inner Line along the Assam foot-hill tracts.

These policies, which brought with them material advantages (land ownership for instance), consolidated tribal identity within the mosaic of the ethnic group, and privileged specific territorial affiliations that lay within the pale of British India rather than on the periphery. As Arvind Sharma cogently argues, they encouraged migratory groups to affirm their Indic232 ritual status and belonging.233

Imperial policy in Assam between 1836 and 1871 suppressed Assamese language in favour of Bengali. Known as the dark period of Assamese language, literature and culture, it deepened the divisions within Assam.234 In 1837, Bengali was declared the official language in courts and in education, replacing Assamese.235 Bengalis were more acquainted with British

<footnote n="230">230 Nicholas B Dirks, *Castes of Mind: Colonialism and the Making of Modern India* (Princeton University Press 2001).</footnote>

<footnote n="231">231 Manasjyoti Bordoloi, 'Impact of Colonial Anthropology on Identity Politics and Conflicts in Assam' (2014) 49 EPW 47, 51.</footnote>

<footnote n="232">232 Indic religious refers to Hinduism, Buddhism, Jainism and Sikhism.</footnote>

<footnote n="233">233 Arvind Sharma (ed), *Goddesses and Women in the Indic Religious Tradition* (Brill 2005) 45–49.</footnote>

<footnote n="234">234 Sanjib Baruah, *India against Itself: Assam and the Politics of Nationality* (OUP 1998) 71.</footnote>

<footnote n="235">235 HK Barpujari (ed), *North-East India, Problem Prospect and Politics* (Spectrum Publishers 1998) 109; P Majumdar, *Colonialism, Language and Politics, Origins of the Language Dispute in Assam* (DVS Publishers 2014) 57.</footnote>
administration than the Assamese<fnref n="236" /> and Bengali recruitment into the local administration and schools accelerated stoked differences between the local middle class and immigrants.

Both Bengalis and Assamese viewed the state government and institution as an instrument to consolidate their own positions in society.<fnref n="237" /> Political scientist, Weiner emphasizes this factor as decisive in the relationship between Bengali Hindus and Bengali Muslims from the 19th century. In the 19th and 20th century, Bengali Hindus, benefiting from higher education, were able to consolidate their position in the administration. With independence in 1947, the Assamese in power then tried to promote Assamese cultural identity and win equality with Bengali Hindus in the economic sphere and in society.<fnref n="238" />

Anti-colonial movements attempted to create new solidarities beyond old social divisions and ethnic identities, seeking to forge a unity, which Anthony Smith considers a core point for State survival.<fnref n="239" /> Their search for a shared Indian identity above traditional identities came up against the web of ethnic identities.<fnref n="240" />

The formation of political parties, like the Assam Tribal League can be traced to this context. It would take up the cause of their community interests and continue in the postcolonial landscape under different labels.

## 1.2. Emergence of micro-nationalism

Largely associated with the 20th and 21st century, the concept of micro nationalism corresponds to the emergence of small entities bound, according to the political scientist Snyder by history, tradition, culture, and a sense of nationalist sentiment.<fnref n="241" /> Baruah, using a political

<footnote n="236">²³⁶ Paramananda Majumdar, 'Introduction of the Bengali Language in the 19th Century Assam: Role of the British' (2006) 67 P.I.H.C. 787, 787.</footnote>

<footnote n="237">²³⁷ Myron Weiner, 'The Political Demography of Assam's Anti-Immigrant Movement' (1983) 9 Population and Development Review 279, 284; ML Bose, *Social History of Assam*, (Ashok Kumar Mittal Concept Publishing Company 1989) 91.</footnote>

<footnote n="238">²³⁸ Weiner (n 245).</footnote>

<footnote n="239">²³⁹ Anthony D Smith, 'Nationalism and Classical Social Theory' (1983) 34 Br J Sociol 19.</footnote>

<footnote n="240">²⁴⁰ Hiren Gohain, 'Ethnic Unrest in the North-East' (1997) 32 EPW 389, 389.</footnote>

<footnote n="241">²⁴¹ Louis L Snyder, *Encyclopedia of Nationalism* (Paragon House 1990) 212.</footnote>
science approach, uses the concept in Assam, to highlight the nationalist political atmosphere<fnref n="242" /> produced in the ethnic landscape after independence. The determination of regional political groups and the Assamese students movement for greater autonomy, created a micro nationalist movement.

Baruah emphasizes ethnicity as an evolving phenomenon, responding to political and administrative policies. This constructivist approach,<fnref n="243" /> apprehends ethnic identity as bound to a specific social and historical context. He addresses the challenges ethnicity raises for nation building as well as for the emergence of modern nation states. The problem was confronted by sociologists, principally Weber, following 19th century European nationalist ideology that looked upon ethnic groups as a danger for nation-building, and the emergence of modern national states.<fnref n="244" /> In the context of the territorial re-configurations of Northeast India, ethnicity served as a means to differentiate individuals from other groups.<fnref n="245" />

Baruah and Jogendra Das advance the idea that the emergence of these micro-nationalist movements is linked to the region's underdevelopment.<fnref n="246" /> Das further argues that autonomy movements in Assam and the increase of ethnic and sub-nationality movements not only destabilised the social landscape, but also the state's economy.<fnref n="247" />

These positions correspond to those of anthropologists like Abner Cohen,<fnref n="248" /> or political scientists Paul Brass and Ted Gurr. They draw attention to the manipulation by leaders of modern states using ethnic identity to promote their own agendas. In the same vein,

<footnote n="242">²⁴² Sanjib Baruah, ""Ethnic" Conflict as State—Society Struggle: The Poetics and Politics of Assamese Micro-Nationalism" (1994) 28 MAS 649, 650;654.</footnote>

<footnote n="243">²⁴³ Andreas Wimmer, 'The Making and Unmaking of Ethnic Boundaries: A Multilevel Process Theory' (2008) 113 Am. J. Sociol. 970; Kanchan Chandra, 'Cumulative Findings in the Study of Ethnic Politics' (2001) 12 APSA-CP 7, 7.</footnote>

<footnote n="244">²⁴⁴ Mörner Magnus, 'Ethnicidad, Movilidad Social y Mestizaje En La Historia Colonial Hispanoamericana' in Jan-Åke Alvarsson and Hernán Horna (eds), *Ethnicity in Latin America* (Uppsala University 1990) 30.</footnote>

<footnote n="245">²⁴⁵ George A De Vos, 'Ethnic Pluralism: Conflict and Accommodation: The Role of Ethnicity in Social History' in George A De Vos and Lola Romanucci-Ross (eds), *Ethnic Identity: Cultural Continuities and Change* (Palo Alto: Mayfield Publishing Company 1975) 16.</footnote>

<footnote n="246">²⁴⁶ Baruah, ""Ethnic" Conflict as State" (n 250) 654.</footnote>

<footnote n="247">²⁴⁷ Jogendra Kr Das, 'Assam: The Post-Colonial Political Developments' (2005) 66 IJPS 873, 873.</footnote>

<footnote n="248">²⁴⁸ Abner Cohen, 'Introduction: The Lesson of Ethnicity' in Abner Cohen (ed), *Urban Ethnicity* (Tavistock Publications 1974); Abner Cohen, *Custom and Politics in Urban Africa* (University of California Press 1969).</footnote>
anthropologist Jay Sokolovski argues that ethnic groups are perceived as a product of political myths, and are thus created and manipulated by elites.<fnref n="249" />

Indeed, state policies after independence furthered the consolidation of ethnic movements in Northeast India.<fnref n="250" /> The creation of the state of Assam highlighted the reality of a multi-ethnic society on the one hand, and on the other, a political determination to weave these together into a uniform regional identity.

### 1.3. Politicisation of ethnic conflicts

Conflict in Assam is multiple in nature. It extends from ethnic conflicts between groups to the struggle for control by the state, and tussles with local power structures. Feminist researcher, Goswami highlights the confrontation between ethnic groups over ownership of an 'Axamiya' identity.<fnref n="251" />

Scholars highlight several elements to explain these ethnic conflicts.

**Militarisation** – Till the end of the 1990s literature on ethnic consolidation followed primordialist theories,<fnref n="252" /> which also argued that different communities are more prone to fighting amongst themselves. In 1997, Das' work on ethnic insurgencies in the region stressed the political contingent of ethnicity.<fnref n="253" /> He saw the political angle as crucial for understanding continuities in inter-ethnic conflicts and their resolution.

Social scientists see the role of organisations in sustaining ethnic identity movements in Assam as an important aspect of ethnic conflict in the region.<fnref n="254" /> Baruah argues that in Assam, ethnic categories have served as ammunition for political projects, which has affected peace in the

<footnote n="249">²⁴⁹ Jay Sokolovsky, 'Ethnicity, Culture and Aging: Do Differences Really Make A Difference?' (1985) 4 J Appl Gerontol 6.</footnote>

<footnote n="250">²⁵⁰ Gohain, 'Ethnic Unrest in the North-East' (n 248) 391.</footnote>

<footnote n="251">²⁵¹ Goswami (n 217) 87; Misra, 'Immigration and Identity Transformation in Assam' (n 228) 1265.</footnote>

<footnote n="252">²⁵² Geertz, 'The Integrative Revolution: Primordial Sentiments and Civil Politics in the New States' (n 224); Isaacs (n 224); Stack (n 224).</footnote>

<footnote n="253">²⁵³ Samir Kumar Das, 'Ethnic Insurgencies in North-Eastern India: A Framework for Analysis' in B Pakem (ed), *Insurgency in North-Eastern India* (Omsons 1997).</footnote>

<footnote n="254">²⁵⁴ Parag Moni Sarma, 'Ethnicity, Identity and Cartography: Possession/Dispossession, Homecoming/Homelessness in Contemporary Assam' (2011) 3 Stud. Transit. States Soc 24, 25–26.</footnote>
region, and led to conflict since India's independence.<fnref n="255" /> These in turn have affected the traditional balance of ethnic groups in the region and fomented conflicts.<fnref n="256" /> The situation was aggravated with independence. Gohain shows that the arrival of foreigners in Assam was perceived as a threat to the Assamese speaking community.<fnref n="257" /> This led to discriminatory practices: a process of assimilation for tribal communities, but not for immigrant Muslims;<fnref n="258" /> and linguistic nationalist policies by NGOs such as the *Asam Sahitya Sabha*, which mobilised support for ethnic separatism in the region.<fnref n="259" /> Gohain sees this situation as the result of the rise of militancy among ethnic groups due to State failure in dealing with changing socio-economic contexts.<fnref n="260" /> Equally, Sanjib Baruah,<fnref n="261" /> Manorama Sharma,<fnref n="262" /> Gail Omvedt,<fnref n="263" /> and Udayon Mishra,<fnref n="264" /> see militancy rooted in the backward economic and political development in the region. Udayon Mishra maintains that these conflicts can be perceived as the 'periphery strikes back'.<fnref n="265" /> Das shows how the region's reorganisation has encouraged small communities and elites to increase their demands for reorganisation.<fnref n="266" />

**Peripheral location** – This structural condition is considered by scholars to be the main cause of violence. At the start of the 1990s, new policies were introduced in the region, opening its

<footnote n="255">²⁵⁵ Sanjib Baruah, ‘Immigration, Ethnic Conflict, and Political Turmoil Assam, 1979-1985’ (1986) 26 Asian Survey 1184, 1185.</footnote>

<footnote n="256">²⁵⁶ N Dutta, *Question of Identity in Assam: Location, Migration, Hybridity* (Sage 2012) 144.</footnote>

<footnote n="257">²⁵⁷ Gohain, ‘Ethnic Unrest in the North-East’ (n 248) 390.</footnote>

<footnote n="258">²⁵⁸ Hiren Gohain, ‘Once More on Ethnicity and the North-East’ (2008) 43 EPW 18, 19.</footnote>

<footnote n="259">²⁵⁹ Baruah, “‘Ethnic’ Conflict as State” (n 250) 665–666.</footnote>

<footnote n="260">²⁶⁰ Gohain, ‘Ethnic Unrest in the North-East’ (n 248) 391.</footnote>

<footnote n="261">²⁶¹ Baruah, *India against Itself: Assam and the Politics of Nationality* (n 242); Sanjib Baruah, *Durable Disorder: Understanding the Politics of Northeast India* (OUP 2005).</footnote>

<footnote n="262">²⁶² Manorama Sharma, *Social and Economic Change in Assam: Middle Class Hegemony* (Ajanta Publications 1990).</footnote>

<footnote n="263">²⁶³ Gail Omvedt, *Reinventing Revolution: New Social Movements and the Social Tradition in India* (East Gate 1990).</footnote>

<footnote n="264">²⁶⁴ Udayon Misra, *North East India - Quest for Identity* (Omsons 1988).</footnote>

<footnote n="265">²⁶⁵ Udayon Misra, *The Periphery Strikes Back: Challenges to the Nation-State in Assam and Nagaland* (Indian Institute of Advanced Study 2000).</footnote>

<footnote n="266">²⁶⁶ Samir Kumar Das, ‘The State and the Middle Class: The Case of Assam (1979-1990)’ in B Datta Ray and SP Agrawal (eds), *Reorganization of North-East India since 1947* (Concept 1996).</footnote>
economy to wider markets. For B.G. Verghese,<fnref n="267" /> Gulshan Sachdeva,<fnref n="268" /> Sikdar Sujit and Devadas Bhorali,<fnref n="269" /> development was perceived as the solution to end ethnic conflict. While for Baruah, connecting the region with its neighbours was not a solution to conflict, violence and insurgency movements.<fnref n="270" /> He held that development, rather than serving as a key to end violence may, on the contrary, aggravate conflicts over power, land or jobs. Dutta argues that development should be pursued in respect of human security.<fnref n="271" />

**Official language** – Scholars attribute the discontent of hill people who speak the Singpho dialect, to the imposition of Assamese as the official language of the state in 1960. This deepened tribal communities' fears of a future disintegration, and their assimilation into the Assamese community through economic pressures. Nevertheless, government reports assessed that the Assam hills had done well, with a rise in per capita income.<fnref n="272" /> Linguistic tensions, and violence between the hill people, and the Assamese and Bengali speaking peoples, also saw the emergence of new pressure groups such as the All-Party Hill Leaders Conference, demanding separation, resulting in the establishment of Meghalaya state in 1972.

**Population displacements and anti-immigration movement** – Migration in Northeast India deeply affected ethnic interrelations. Ranabir Samaddar's work on migration from Bangladesh to West Bengal since 1947, pinpoints the historical conditions responsible for these flows and their links with collective violence and politics.<fnref n="273" /> Other scholars like Mridula Dhekial Phukan argue that violence was directed towards ethnic and religious groups migrating from one place

<footnote n="267">²⁶⁷ BG Verghese, *India's Northeast Resurgent: Ethnicity, Insurgency, Governance, Development* (Konark Publishers 1997).</footnote>

<footnote n="268">²⁶⁸ Gulshan Sachdeva, *Economy of the North-East: Policy, Present Conditions, and Future Possibilities* (Konark Publishers 2000).</footnote>

<footnote n="269">²⁶⁹ Sikdar Sujit and Devadas Bhorali, 'Resource Mobilisation, Distribution Effect and Economic Development of the North-Eastern Region' in Gurudas Das and RK Purkayastha (eds), *Liberalisation and India's North East* (Commonwealth Publishers 1998).</footnote>

<footnote n="270">²⁷⁰ Chandra Nath Baruah, 'Assamese Response to Regionalism: A Study Based on 1985 and 1991 Elections' in Girin Phukon and Adil-Ul Yasin (eds), *Working of Parliamentary Democracy and Electoral Politics in Northeast India* (South Asian Publishers 1998).</footnote>

<footnote n="271">²⁷¹ Akhil Ranjan Dutta (ed), *Human Security in North-East India: Issues and Policies* (Anwesha 2010).</footnote>

<footnote n="272">²⁷² 'Report of the Commission on the Hill Areas of Assam 1965-66, Pataskar Report' (Government of India 1966).</footnote>

<footnote n="273">²⁷³ Ranabir Samaddar, *The Marginal Nation - Transborder Migration from Bangladesh to West Bengal* (SAGE Publications 1999).</footnote>
to another.<fnref n="274" /> Work on population displacement and their evolution has been seen as a key
element in understanding political responses.

Migration flux in the region has promoted policy responses by the central government. Yet, these measures, though adopted within the legal framework, are perceived as further dividing communities and increasing violence towards them. Amarjeet Singh highlights this point by examining the promulgation of the Illegal Migrant (Determination by Tribunal) Act, 1983 (IMDT Act). The anti-immigration movement in Assam pushed the federal government to enact new legislation aimed at identifying non-citizens in the state. This legal measure created divisions between individuals and communities. In fact, with the abolition of the IMDT Act, Muslims who initially supported it, protested that their community would be harassed by police forces.<fnref n="275" />

Social movements in Assam have appeared as a voice for anti-immigration policies. This corresponds to Fuchs and Linkenbach's understanding that they are rational undertakings by movements who give voice to collective projects through their mobilizing efforts.<fnref n="276" /> In Assam, anti-immigration movements turned violent during Partition, and Bangladesh's independence (1971). Anti-immigration protest escalated under the United Liberation Front of Assam (ULFA) group after 1979. Initially perceived as a moderate movement, it became rapidly more militant.<fnref n="277" /> Representing the tribal and ethnic groups of Assam, ULFA functioned as a platform of protest against the central government in the 1990s. Their radicalisation was a consequence of two elements: the inaction and repression of the government, and the legitimisation and acceptance of the use of violence.<fnref n="278" />

Anti-immigration movements in Assam, while addressing issues of illegal immigration in the region, focused attention on their claims, legitimised violence, used terrorists' techniques,<fnref n="279" />

<footnote n="274">²⁷⁴ Mridula Dhekial Phukan, 'Ethnicity, Conflict and Population Displacement in Northeast India' (2013) 1 AJSSH 91.</footnote>

<footnote n="275">²⁷⁵ M Amarjeet Singh, 'The Politics of Migration in India: What It Is; and What to Do?' (2013) 1 Third Front Journal of Humanities and Social Science 1, 10.</footnote>

<footnote n="276">²⁷⁶ Martin Fuchs and Antje Linkenback, 'Social Movements' in Veena Das (ed), *The Oxford India Companion to Sociology and Social Anthropology* (OUP 2003).</footnote>

<footnote n="277">²⁷⁷ Samir Kumar Das, *Civil Society, Conflict and Peace* (East West Center 2007).</footnote>

<footnote n="278">²⁷⁸ Jennifer M Hazen, 'From Social Movement to Armed Groups: A Case Study of Nigeria' in Keith Krause (ed), *Armed Groups and Contemporary Conflicts: Challenging the Weberian State* (Routledge 2010) 81.</footnote>

<footnote n="279">²⁷⁹ Nani Gopal Mahanta, *Confronting the State: ULFA's Quest for Sovereignty* (Sage Publications 2013).</footnote>
and created insecurity for Muslim Assamese, questioning their assimilation in society.<fnref n="280" /> The Nellie massacre of February 1983, in which nearly 1800 Muslims peasants of East Bengali origin were killed following attacks by indigenous Assamese and Tiwas, was the biggest collective act of violence in Assam.<fnref n="281" /> The focus on the causes and circumstances of communal violence linked with the rise of right-wing Hindu politics,<fnref n="282" /> draws upon studies on collective violence in history, sociology, anthropology and political science in the mid-1990s. Paul Brass’ analyses of the politicisation of differences between religious groups in North India offers a detailed picture of the means and channels of instrumentalization and manipulation<fnref n="283" /> of communal violence by political parties<fnref n="284" /> and Asghar Ali Engineer’s studies of communal riots between Hindus and Muslims puts the blame squarely on politicians.<fnref n="285" />

## 2. Citizenship in Assam

Citizenship in the Indian modern State system is linked to the drawing of state boundaries after Partition. In theory, citizenship and ethnicity should not be linked, yet in many States that operate a *jus sanguinis* citizenship policy, both concepts are intrinsically linked. In India these concepts are not detachable. In the current literature three approaches stand out to the question.

**Religious belongings** – In Assam, the citizenship issue is intertwined with ethnic conflict within the state. Hindu-Muslims riots since 1947 imposed religious belonging in discussions on citizenship. Further, the notion of foreigner intensified with the entry of immigrants added

<footnote n="280">²⁸⁰ ANS Ahmed and Adil-Ul Yasin, ‘Problems of Identity, Assimilation and Nation Building: A Case of the Muslims of Assam’ in Phukan Girin and NL Dutta (eds), *Politics of Identity and Nation Building in North-East India* (South Asian Publishers 1997) 148.</footnote>

<footnote n="281">²⁸¹ Makiko Kimura, *The Nellie Massacre of 1983: Agency of Rioters* (SAGE Publications 2013) 1; *Times of India* (22 February 1983).</footnote>

<footnote n="282">²⁸² See: Veena Das (ed), *Mirrors of Violence: Communities, Riots and Survivors in South Asia* (OUP 1990); Surendra K Gupta and Indira B Gupta, *Conflict and Communication: Mass Upsurge in Assam*. (Har-Anand 1990); Nag Sajal, *Roots of Ethnic Conflict: Nationality Question in North-East India* (Manohar 1990); Makiko Kimura, ‘Memories of the Massacre: Violence and Collective Identity in the Narratives on the Nellie Incident’ (2003) 4 Asian Ethnicity 225.</footnote>

<footnote n="283">²⁸³ Jaideep Saikia, *Frontier in Flames: North-East India in Turmoil* (Viking 2007); Subir Bhaumik, *Troubled Periphery: Crisis of India’s North East* (SAGE 2010).</footnote>

<footnote n="284">²⁸⁴ Paul R Brass, *The Production of Hindu–Muslim Violence in Contemporary India* (OUP 2003) 25.</footnote>

<footnote n="285">²⁸⁵ Asghar Ali Engineer, ‘Bhagalpur Riot Inquiry Commission Report’ (1995) 30 EPW 1729, 1729.</footnote>
to the complexity of the ethnic tangle. Bengali Muslims and immigrant Bangladeshis considered as ‘foreigners’, became common enemies of Asomiya speaking peoples and the tribal and ethnic groups of the region. For Jaswant Singh, a founding member of the BJP, the immigration situation offered a favourable terrain to win support by raising the spectre of ‘uncontrolled and mostly illegal immigration’.<fnref n="286" /> Sanjib Baruah describes how the Assam movement of 1979-1985, whilst forging an Assamese unity, redefined who was a foreigner in Assam.<fnref n="287" /> Illegal immigrant, citizenship and ethnic conflict in Assam thus became inseparable and enmeshed in religious identities in the literature.<fnref n="288" /> Kustavmoni Boruah’s<fnref n="289" /> and Navine Murshid’s<fnref n="290" /> discussion of the foreigner recalls the distinction between Hindu insiders and Muslim (Bengali) outsiders. For Murshid, this sentiment is clearly a post-independence construction.

**Historical line** – This approach to citizenship in India is broadly shared by among scholars. Anupama Roy follows a chronological and historical approach to the evolution of citizenship across three landmark dates that determined the nation’s citizenship criteria. She highlights the State practice of considering political factors, both domestic and external.<fnref n="291" /> Firstly, she singles out the Partition and the migratory flux between Pakistan and India in 1947, emphasizing the continuity of this flux after the borders were settled. Secondly, she analyses the 1986 CAA in relation to the political turmoil in Assam and the rise of separatism in the state. Finally, she examines the 2003 CAA which gives citizenship to individuals of Indian origin living abroad. Indeed, this Amendment raised fundamental questions about the criteria of Indian citizenship.

Continuing this approach Niraja Gopal Jayal (2013) underlines the constitutional and democratic processes that determined citizenship after independence. She situates the concept within the longer framework of Indian colonial governance practices and anticolonial

<footnote n="286">²⁸⁶ Jaswant Singh, ‘Assam’s Crisis of Citizenship: An Examination of Political Errors’ (1984) 24 Asian Survey 1056, 1060.</footnote>

<footnote n="287">²⁸⁷ Baruah, ‘Immigration, Ethnic Conflict, and Political Turmoil Assam’ (n 263).</footnote>

<footnote n="288">²⁸⁸ Walter Fernandes, ‘IMDT Act and Immigration in North-Eastern India’ (2005) 40 EPW 3237; Shahiuz Zaman Ahmed, ‘Identity Issue, Foreigner’s Deportation Movement and Erstwhile East Bengal (Present Bangladesh) Origin People of Assam’ (2006) 67 PIHC 624.</footnote>

<footnote n="289">²⁸⁹ Kaustavmoni Boruah, “‘Foreigners” in Assam and Assamese Middle Class’ (1980) 8 Social Scientist 44.</footnote>

<footnote n="290">²⁹⁰ Navine Murshid, ‘Assam and the Foreigner Within: Illegal Bangladeshis or Bengali Muslims?’ (2016) 56 Asian Survey 581.</footnote>

<footnote n="291">²⁹¹ Anupama Roy, *Mapping Citizenship in India* (OUP 2010).</footnote>
their loyalty.<fnref n="298" /> India's post-independence record seems to have constructed Muslims as a minority.<fnref n="299" />

**3. Conclusion: Assam through a long-term approach**

The works discussed here testify that ethnic diversity in Assam is marked by tensions, and rivalry for greater share in power and resources. These reflect the many layers of accumulated discontent between different groups produced by a succession of administrative measures under the colonial state and post-1947. While there is general agreement about colonial responsibility in creating and breeding antagonisms between communities, there is an equal consensus about the failure of the post-colonial State to resolve these issues, ensure equality to all its citizens, and guarantee fundamental rights, as promised by the constitution. On the one hand, the central government's disregard for economic development in the region is held at fault. On the other, a principal reason for the current imbroglio in Assam is attributed to the ineffective political strategies of governments in power, and their inability to negotiate with regional political parties. At the same time, myths and fears about foreigners have taken root and favoured their exploitation by political parties seeking to establish territorial unity through ethnic homogeneity. Post 2019 CAA literature, following a top-down approach, highlights the failure in creating a national community.

<footnote n="298">²⁹⁸ Vasundhara Sirnate, 'The RSS and Citizenship: The Construction of the Muslim Minority Identity in India' in Mushirul Hasan (ed), *Living with secularism: the destiny of India's Muslim* (Manohar New Delhi 2007) 232–233.</footnote>

<footnote n="299">²⁹⁹ Pandey (n 305).</footnote>
Conclusion

Minority groups and discrimination are concepts that regularly interact, both positively
with States protecting them, or negatively with violations of their core rights. Since the UN's
creation the right to non-discrimination is clearly established and has been developed within
IHRL. These concepts are certainly not a recent preoccupation. Scholars have deliberated on
them through different prisms, as highlighted in the literature review above, and developed an
important corpus of work.

Yet, India's case shows, how, in practice, minority groups, despite international legal
provisions are victims of political developments, especially heightened ethnic nationalism.

The succeeding chapters analyse the functioning of law in the Indian democracy by
examining the role of courts and judges in the application of the recent citizenship agenda that
seeks to determine who belongs and who is an alien. Here, the judiciary appears as a parallel
democratic arena to protect individual rights. These chapters study the effects of the constraints
imposed by an ethnic nationalist regime on the judiciary's role in protecting minority rights.
Ideally, the implementation of legal rights is undertaken by States without discrimination.<fnref n="300" /> It
presupposes equality in law and in the enjoyment of all human rights, which enjoins that group
identity should not be an obstacle in the exercise of core human rights.<fnref n="301" /> If democratic culture
signifies political pluralism, representation, and non-discrimination in the extension of civil
rights as well as tolerance, the case of Assam offers a rich terrain to study the problems in the
development of this political culture.

<footnote n="300">³⁰⁰ Article 1 and 55 United Nations Charter 1945; Article 2 UDHR; Article 2 ICESCR; Article 2 ICCPR.</footnote>

<footnote n="301">³⁰¹ Lennox (n 43).</footnote>
Part 2. Institutional, administrative and judicial
erasure of religious and ethnic minorities: a case study
of Assamese Muslims

"I want to tell them frankly ... that mere declarations of loyalty to the Indian Union will not help them at this critical juncture. They must give practical proof of their declaration."<fnref n="302" />

<footnote n="302">³⁰² Vallabhbhai Patel's - leading member of the Indian National Congress - speech at a public meeting in Lucknow on 6 January 1948. Vallabhbhai Patel, For a United India: Speeches of Sardar Patel, 1947-1950 (Publications Division, Ministry of Information and Broadcasting, Govt of India 1967) 64.</footnote>
**Introduction**

Investigating the role of the judiciary, particularly judges, is crucial in a political system where a government in power seeks to impose a strong Hindu State. More than a state-centric approach is required along with the need to consider other actors at the national level.

The inquiry proceeds in two steps: the first examines at the national level SC decisions on questions of the right to nationality within the framework of the Indian constitutional system that affirms the essential plurality and religious multiplicity of the State. The second takes a regional approach to evaluate the extent to which judges' decisions are determined by government directives, and the constraints it can impose on them, or if the judiciary is relatively independent. With this purpose it studies the functioning and decisions of FT and their supervision by the Gauhati High Court and the Assam Government since 2014 in a climate of aggressive Hindu nationalism. It thus permits for an examination of how judges may maintain their independence when the State becomes the principal violator of human rights through discriminatory legislation. This approach underlines how the current issue of nationality in India cannot be analysed exclusively through the prism of majority versus minority or a simple dichotomy between two religious' groups, i.e., Hindus versus Muslims. It should be understood as part of a structural discrimination that functions through judicial rulings towards minorities and is closely tied to the rise of ethnic nationalism in India, promoted by the Bharatiya Janata Party (BJP).<fnref n="303" />

This analysis is conducted in a precise context. India offers an example of a democratic State, which confirms core universal human rights standards in its Constitution. After gaining independence in 1947 it committed itself to promote and protect its cultural diversity. Nonetheless, India has witnessed violent conflict between religious groups. The Indian legal system today faces a double crisis: first, a critical revision of the engagements taken by the State to defend the customs of its diverse communities, and the constitutional recognition of minority groups and their rights; secondly, ideological change underpinning judicial decisions against the principles of the “rule of law”.

<footnote n="303">³⁰³ Christophe Jaffrelot and Cynthia Schoch, *Modi's India: Hindu Nationalism and the Rise of Ethnic Democracy* (Princeton University Press 2021).</footnote>
One of the questions addressed in this case study is how an ethno-nationalist system that
influences legislation and judicial practice cohabit with the norms and standards of human
rights advocated by international conventions.<fnref n="304" /> Furthermore, what latitude does the co-
existence of these different bodies of laws – international, national and customary – offer the
State, the courts, the judicial representatives as well as minorities, in defining and respecting
minorities? Do they, as legal scholar Helen Quane claims, contribute to promoting a dialogue
between all relevant stakeholders? Or do they make for incoherence and harden oppositions
between minority communities and the State? Also, what is the role of the judiciary?

To understand the invisibility of one religious and ethnic minority in Assam (map 1) the thesis examines the ways in which discriminatory legislation, practices, and policies work. It investigates their role in the functioning of democracy and the rule of law. In December 2019, the government of India introduced a first comprehensive NRC, based on the compilation of a National Population Register (NPR), whose data collection was deferred to September 2022. <fnref n="305" /> It was backed by a CAA, 2019. The NRC’s implementation led to the exclusion of 1.9 million people of a population of 30.94 million being deprived of their citizenship and made stateless. <fnref n="306" />

Map 1: Localisation of the state of Assam in India

<footnote n="304">³⁰⁴ A particular source of contention in India has been the BJP's demand for a uniform civil code as a means to extend equal treatment to religious minorities. It is contested by critics as a denial of identity and rights. Nivedita Menon, 'A Uniform Civil Code in India: The State of the Debate in 2014' (2014) 40 Feminist Studies 480. Upendra Baxi, 'Siting Secularism in the Uniform Civil Code: A “Riddle Wrapped inside an Enigma”?' in Anuradha Dingwaney Needham and Raheswaru Sunder Rajan (eds), *The crisis of secularism in India* (Duke University Press 2007).</footnote>

<footnote n="305">³⁰⁵ Vijaita Singh, 'Census First Phase, NPR Data Collection Put off till September' *The Hindu* (2 January 2022).</footnote>

<footnote n="306">³⁰⁶ Priyali Sur, ‘A Year After Rendering Millions Stateless, India Has Yet to Hear a Single Appeal’ (*Foreign Policy*, 10 September 2020); ‘Contested Citizenship in Assam: Public Hearing on Constitutional Processes and the Human Cost - Background Note’ (Indian Society of International Law 2019).</footnote>
<figure><img src="image_3.png" /></figure>

Source: Assam - Wikipedia

Located in the North-East of India, the state of Assam with its 33 districts borders Bhutan and Bangladesh. The 270 km border with Bangladesh makes it difficult to control trans-border movements. Assam's population includes multiple indigenous groups (with at least twenty-three groups of tribes), which has made the introduction of equal citizenship more complex and layered.<fnref n="307" /> The situation going back to the colonial period was aggravated with Partition, which created new national frontiers and divided the area into five Northeastern states. The consequences of civil war in Bangladesh (1971) drew in a large number of Hindus and Muslims migrants with roots in Bangladesh. Their arrival and the subsequent tensions with local populations in a region whose rich oil-reserves make it a precious resource for India, added political urgency in the 1980s to legalizing the situation of Assamese inhabitants, through confirmation of citizenship.

The analyses is done across two chapters, following a more a less chronological approach.
Starting with the analyses of then the establishment of the legal concept of nationality since
India's independence in 1947 (Chapter 4), and finishes by examining the current context of
discrimination towards minorities and their invisibility through nationality deprivation in
Assam (Chapter 5).

<footnote n="307">³⁰⁷ Indigenous groups, known as *Adivasis*, often do not have proofs of their citizenship. Their exclusion from the NRC has led to their arrest and detention in transition camps. Some of the *Adivasis* living in the Saranda Forest of Jharkhand, do not have the required documents to prove their citizenship. 'Indian Citizenship Laws Have Deep Impact on Adivasis' (*International Work Group for Indigenous Affairs*, 5 February 2020).</footnote>
In order to understand the development of legal norms defining nationality and citizenship, the following chapters are based on the analysis of Indian legal sources (legislation), newspapers in English and interview data. These shed light on some of the significant national and regional public debates on the question of citizenship, and the positions of the various actors involved: from political parties, public intellectuals, retired members of the judiciary, and academics, to civil society groups.

It is argued that respect of human rights depends on the individual's legal recognition by the State. This part attempts to understand and analyse some of the issues that can become an impediment to the cause of defending the right to nationality.
**Chapter 4. Constitutional and legal structure of nationality**

Ethno-nationalist political movements whilst aiming to rally people within a common
national frame undeniably hit vulnerable and marginal groups negatively, through
discrimination. Their impact can be easily perceived in social behaviour, and less obviously
though more powerfully, through legislation and legal rulings. This observation applies to India
but equally to Eastern and Central Europe and South America. Therefore, when analysing
minority discrimination, the role of these political movements must be kept in mind, in order
to understand the blurred frontiers between the legality provided by legislations, and the abuses
arising during the application of these laws by judges. Scholars have singled out three general
features of ethno-nationalist political movements that affect the nation's unity and individuals.
The Indian case must be considered in this broad context to understand its particularities.

Firstly, extreme ethnic nationalism is often described as a sociological condition and must be
analysed through the classification of empirical cases.<fnref n="308" /> This approach does not consider
political and economic complexities, nor does it integrate the impact of colonialism.<fnref n="309" />

Secondly, ethnic affiliations are at the heart of the discourse of ethno-nationalist parties.
Individuals need to see their identity recognised by ruling governments, and while this element
can be found in all modern Sates,<fnref n="310" /> according to the anthropologist Clifford Geertz
postcolonial states confront more extreme forms.<fnref n="311" /> For Geertz, the place of ethnic affiliations
in the construction of a modern nation is linked to two factors: (i) the need for public recognition
of a distinct identity; and (ii) the will to be part of the new State.<fnref n="312" /> States' diversity in terms of
social structure, language, diet, or dress codes impact the socio-political dimension, and in
extreme cases, democratic consolidation and nation-building. Primordial sentiments,
understood here as the idea that nations and ethnic identities are fixed, can be used to define
ethnic identities according to their historical importance and the role they may play

<footnote n="308">³⁰⁸ Partha Chatterjee, *Nationalist Thought and the Colonial World* (Zed Books for the United Nations University 1986) 1–6; 3–4.</footnote>

<footnote n="309">³⁰⁹ Mohammad Shahabuddin, *Minorities and the Making of Postcolonial States in International Law* (Cambridge University Press 2021) 24.</footnote>

<footnote n="310">³¹⁰ Extremist Rights political parties often recalled the national identity, such as the French party, le Rassemblement National.</footnote>

<footnote n="311">³¹¹ Clifford Geertz, *The Interpretation of Cultures* ((1973), Basic Books 2017) 258–260.</footnote>

<footnote n="312">³¹² ibid 258; Isaiah Berlin, *Two Concepts of Liberty* (Clarendon Press 1958) 42; Edward Shils, ‘Political Development in the New States’ (1960) 2 CSSH 265.</footnote>
politically.<fnref n="313" /> For new postcolonial States, despite the affirmation of key democratic values such as diversity, and the respect of the rule of law, primordialism remains fundamental (mainly for tribes or religious groups<fnref n="314" />) and governments, both central and regional, take cognizance of this factor.

Finally, it is certain that anticolonialism permeated ethno-nationalist ideologies in colonial States,<fnref n="315" /> as nationalism became a synonym for patriotism.<fnref n="316" /> In the Indian case, during the Ramgarh Conference of the Indian National Congress in 1940, Abul Kalam Azad, senior leader of the party, while referring to minorities and India's political future, stressed the impact of British imperialism in fomenting divisions within Indian society to consolidate its own power.<fnref n="317" />

Nationalists engaged in anticolonial struggles held colonial policy responsible for the promotion of ethno-nationalist programs. Even today, the consequences of such politics continue to affect the democratic system.<fnref n="318" /> In many decolonised States under authoritarian governments, ethnic and religious divisions amongst the populations have led to recurrent crises at the regional level and undermined the legitimacy of the State. In the Nigerian case, also colonised by Great Britain, colonial administrative policies built around the principles of “us versus them”, aggravated community and social divisions. Religious and ethnic differences,

<footnote n="313">³¹³ Richard H Thompson, *Theories of Ethnicity – A Critical Appraisal* (Greenwood Press 1989) 53; Shahabuddin (n 319) 26; John D Huber and Pavithra Suryanarayan, ‘Ethnic Inequality and the Ethnification of Political Parties: Evidence from India’ (2016) 68 World Politics 149; Harjit Singh, ‘Ethnic Identity Consciousness in the Developing Countries: Indian Experience’ (2008) 69 IJPS 493; Craig Calhoun, ‘Nationalism and Ethnicity’ (2003) 19 Annu. Rev. Sociol. 211; Steven Ian Wilkinson, ‘India, Consociational Theory, and Ethnic Violence’ (2000) 40 Asian Survey 767; Atul Kohli, ‘Can Democracies Accommodate Ethnic Nationalism? Rise and Decline of Self-Determination Movements in India’ (1997) 56 J. Asian Stud. 325; Anthony D Smith, ‘Culture, Community and Territory: The Politics of Ethnicity and Nationalism’ (1996) 72 International Affairs 445; G Palanithurai, ‘Ethnic Identity and National Loyalty of an Ethnic Group in India’ (1990) 51 IJPS 84.</footnote>

<footnote n="314">³¹⁴ Geertz, *The Interpretation of Cultures* (n 340) 270.</footnote>

<footnote n="315">³¹⁵ Donald L Horowitz, *Ethnic Groups in Conflict* ((1985), University of California Press 2001) 157.</footnote>

<footnote n="316">³¹⁶ Anthony H Richmond, *Immigration and Ethnic Conflict* (Macmillan Press 1988) 170–171.</footnote>

<footnote n="317">³¹⁷ AM Zaidi, *Congress Presidential Addresses, Volume Five: 1940-1985* (Indian Institute of Applied Political Research 1985) pt Presidential Address to the Fifty-Third Session of the Indian National Congress Ramgarh, 1940 by Abul Kalam Azad (1888-1958). This divisive policy was traced back to 1821, and more precisely to the Latin expression “divide et impera” (divide and rule) used by a British officer, Commander of Moradabad in the 19th century. The idea is to be found in civil servant John Strachey’s book *India* (1888). See: Rajani Palme Dutt, *India Today* ((1940), Publishing House Ltd 2008) 456; Baman Das Basu, *Consolidation of the Christian Power in India* (R Chatterjee 1927) 74; John Strachey, *India* (Kegan Paul & Co 1888) 255.</footnote>

<footnote n="318">³¹⁸ Pamela Price, ‘Democracy and Ethnic Conflict in India: Precolonial Legacies in Tamil Nadu’ (1993) 33 Asian Survey 493; Ramachandra Guha, ‘Democracy and Violence in India and Beyond’ (2013) 48 EPW 34.</footnote>
mainly between Muslims and Christians, made for socioeconomic imbalances and increased the primacy of identity awareness.<fnref n="319" />

In India, these differences along with socioeconomic, regional imbalances inherited from the colonial period, favoured the success of ethno-nationalism ideologies. The evolution of citizenship debates and laws requires an in-depth analyses to understand that the issues linked today to citizenship in reality did not emerge with the success of ethno-nationalist ideologies but are in fact deeply rooted in Indian politics and date back to 1947. In line with the historical trajectory of States emerging from colonial rule, the enduring influence of the colonizers' historical legacy and practices remains ingrained in contemporary society. Therefore, the effectively analyses and comprehension of human rights violations linked to the right to nationality, leads to an imperative critical examination of political debates.

# 1. Requirements for a new nation

On the morrow of Partition,<fnref n="320" /> as Britain withdrew, Pakistan and India were free to elaborate their independent policies regarding citizenship. Pakistan was created on arguments of nationhood based on a Muslim religious identity<fnref n="321" /> and India as a multi-religious nation, comprising a majority Hindu population but also Muslims, Sikhs, Christians, Parsis and Jains.

<footnote n="319">³¹⁹ GC Sokoh, ‘Primordial Sentiments, Nation Building and the Continuing Crises of Democracy in Nigeria’ (2019) 7 GJPSET 9, 12; James D Fearon and David D Laitin, ‘Ethnicity, Insurgency, and Civil War’ (2003) 97 APSR 75, 82.</footnote>

<footnote n="320">³²⁰ For an overview of Partition historiography, see: Joya Chatterji, ‘Partition Studies: Prospects and Pitfalls’ (2014) 73 J. Asian Stud. 309; Asim Roy, ‘The High Politics of India’s Partition: The Revisionist Perspective’ (1990) 24 MAS 385; Yasmin Khan, *The Great Partition: The Making of India and Pakistan* (Yale University Press 2017); Nonica Datta, ‘Partition and Many Nationalisms’ (2005) 40 EPW 3000; Kushwant Singh, *Train to Pakistan* (Chatto & Windus 1956).</footnote>

<footnote n="321">³²¹ See: Ayesha Jalal, *Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective* (Cambridge University Press 1995); Sunil Khilnani, *The Idea of India* (Farrar, Straus and Giroux 1999).</footnote>
Citizenship in India<fnref n="322" /> has been produced by an ongoing dialogue between four approaches: liberal, republican, ethno-nationalist and a non-State conception.<fnref n="323" /> Firstly, the liberal conception, which can be perceived as universal, considers that individuals have a set of rights which protect their personal liberties. Secondly, the republican approach holds that rights are granted to individuals in accordance with their contribution to the common good. Whilst this concept can be seen as a contribution to solidarity, it can equally serve to accentuate discrimination between individuals. Thirdly, the ethno-nationalist notion is based on individuals' membership to descent groups, and thus excludes any individuals who do not have any blood-ties. A parallel can be drawn between this approach and the "historic-biological" citizenship approach,<fnref n="324" /> as both link identity claims to membership of the political community. These first three elements are primarily defined from the perspective of the State, as citizenship corresponds to the creation of the State, and secondly, they can be generalised to any State. Yet, the fourth is specific to the case of India, and derives from Gandhi's ideas about colonial subjecthood and the State. According to him, institutions cannot control the right of individuals to be heard.<fnref n="325" /> Colonial subjects who enjoyed minimum rights in the colonial State therefore were entitled to engage in civil disobedience acts.<fnref n="326" />

The dialogue amongst these approaches, led to a multiplicity of citizenship regulations, and produced three key Indian features: (i) some groups were excluded from the citizenship regime; (ii) individuals despite their social identities have various ways of being Indian; and (iii) institutions and governments can change positions in contexts of contestations and dissent. Consequently, acquisition of citizenship not only provides a link between individuals, social groups and the State, and maintains balance between the different religious and geographical groups, but it can more significantly determine the degree of inclusion versus exclusion within the body of the nation.

<footnote n="322">³²² India does not make a distinction between citizenship and nationality. Both these terms are synonymous in Indian laws, despite the Constitution referring only to citizenship in its articles 5 to 11. Thus, IHRL's approach to nationality will be applied to the Indian concept of citizenship.</footnote>

<footnote n="323">³²³ Shani, 'Conceptions of Citizenship in India and the "Muslim Question"' (n 302) 150.</footnote>

<footnote n="324">³²⁴ It looks at nationality with respect to history or culture of the nation, or a social identity. Alfred Michael Boll, *Multiple Nationality and International Law* (Martinus Nijhoff Publishers 2007) 69.</footnote>

<footnote n="325">³²⁵ Javeed Alam, 'The Nation and The State in India: A Difficult Bond' in Zoya Hasan, E Sridharan and R Sudarshan (eds), *India's Living Constitution: Ideas, Practices, Controversies* (Permanent Black 2002) 96.</footnote>

<footnote n="326">³²⁶ Mohandas Karamchand Gandhi, *The Collected Works of Mahatma Gandhi* (Electronic Book), vol 25: 27 October 1921–22 January 1922 ((1958), Publications Division Government of India 1999) 391–392.</footnote>
With independence, tensions emerged between the ethno-nationalist and the liberal currents. Whilst the Congress upheld the goal of a nation based on diversity (caste, language, religion), within the context of Partition, ethno-nationalism gained ground, building upon, and promoting local patriotism.<fnref n="327" /> In the Indian Constituent Assembly (ICA), doubts were cast on the national credentials and patriotism of individuals who were members of certain groups, such as the Muslim community. This would give rise to a thorny problem that continues to plague the Indian political and social landscape: can a Muslim be an Indian?<fnref n="328" /> This approach interrogates whether nationality still corresponds to a relation between individual and the State.

In addition to the question of their belonging to a country, Muslims were no longer defined by their social categories, caste or geographical locations, but were simply homogenised as part of a community. Such a reduction of an identity allowed party leaders like Vallabhbhai Patel to create an easy distinction between Hindus ('we' and 'us') and Muslims.<fnref n="329" />

## 1.1. Consolidation of unity in the context of Partition

The CAD on nationality revolved around this difference in the treatment of refugees by the Indian State,<fnref n="330" /> during the two partitions in 1947: (i) the province of Punjab;<fnref n="331" /> and (ii) the province of Bengal. In fact, the refugee influx from East Bengal, though less dramatic in 1947, was the more drawn-out. It has been argued that individuals in the Northwestern regions

<footnote n="327">³²⁷ On the formation of regional patriotisms in India see Christopher Bayly, *Origins of Nationality in South Asia* (OUP 1998).</footnote>

<footnote n="328">³²⁸ Pandey (n 305) 615.</footnote>

<footnote n="329">³²⁹ *Constituent Assembly Debates*, vol. V, s 5.44.100, 28 August 1947.</footnote>

<footnote n="330">³³⁰ Joya Chatterji, *Bengal Divided. Hindu Communalism and Partition, 1932-1947* (Cambridge University Press 1995).</footnote>

<footnote n="331">³³¹ The case study focusing on the Northeast region, will not delve into the Partition events in Punjab. Here, violence due to Partition was particularly acute, provoking mass migrations: “*On both sides of the 35-mile-long road between Amritsar and Lahore, there were heaps of corpses. It appeared as if the entire territory had been converted into an extensive graveyard.*” Ian Talbot and Gurharpal Singh, *The Partition of India* (Cambridge University Press 2009) 66–67; 161.</footnote>
received more attention and aid from the new Indian State than individuals from Eastern Bengal,<fnref n="332" /> mainly due to the varying scales of violence.

In the intense displacement of Hindus and Muslims, the citizenship question was strongly dominated by concerns for national security and the desire to consolidate national unity. The subcontinent's partition, and the accompanying communal riots, triggered the displacement of around 14.5 million people and led to human rights violations such as of the *right to life* and *physical integrity*. On the one hand, the territorial amputations of Punjab in the west and Bengal in the east had rendered alien certain segments of the population: 4,7 million Hindus and Sikhs fled West Punjab, and in parallel, 2,5 million Hindus fled East Pakistan in the direction of West Bengal, Assam and Tripura. Those who had considered themselves Indian suddenly found themselves to be residents of Pakistan. Others consciously chose to flee so that they could be Indian citizens.<fnref n="333" /> The adoption of new legislation often comes in response to episodes of rupture and violence. India's legal attitude and process was marked by the Partition, not only because of the population influx, but equally because of the scale of community violence. This context of violence influenced the elaboration of a legal system.

In Eastern Bengal, the migration process was protracted. It started in 1946 with the Noakhali district riots,<fnref n="334" /> and was rendered complex by the interplay of ethnicity, social tensions, and its geographical repercussion. Similar issues affected Assam. Firstly, until 17 August 1947, tribes in the region of East-Bengal did not know clearly if their land was in India or East Bengal. Secondly, until March 1948, a standstill agreement between India and Pakistan accepted a porous border that allowed individuals to cross the border in East-Bengal, to attend to their business, or their seasonal farming activities.

<footnote n="332">³³² Prafulla K Chakrabarty, *The Marginal Men: The Refugees and the Left Political Syndrome in West Bengal* (Naya Udyog 1999) 280–290.</footnote>

<footnote n="333">³³³ Arundhati Virmani, *Atlas Historique de l'Inde* (Autrement 2012).</footnote>

<footnote n="334">³³⁴ These riots touched the Hindu community who were subject to rapes, abductions, forced conversion to Islam and were slaughtered. The peace process established by Gandhi failed and led to an exodus from a majority of the survivors to West Bengal, Tripura and Assam.</footnote>
Partition events thrust the Indian government in a position of protector of its citizens. The new Constitution setting down the rights of citizens was adopted in a climate of civil unrest, ethnic and religious discord. Furthermore, armed insurgency in Kashmir and in the Northeast heightened national insecurity, providing the framework in which the Indian State systematised its formal-legal regime of nationality.

Partition to a large extent was used to justify and morally legitimize India's future positions on nationality, and its respect of or distance from IHRL. While ten expert committees were set up to deal with the administrative aspects<fnref n="335" /> at this time of power transfer and division of resources, no committee was created to deal with the potential problem of mass migration.

## 1.2. The Indian Constituent Assembly Debates

Negotiations between the leaders of the Indian nationalist movement for independence and the British Cabinet Mission led in 1946 to the establishment of the ICA (1946-1950). The CAD offer important insights into the discussions on the fundamental principles of citizenship.

It consisted of 389 members: 292 members of Provincial Legislative Assemblies, 93 from Princely States and Chief Commissioner's Provinces and 4 ICA members. With Partition and the creation of Pakistan, the seats diminished to 299.<fnref n="336" />

Granting West Punjab and East Bengal refugees' Indian nationality became a moral urgency in the light of their traumatic experience and losses. The notion of refugee was thus closely linked to the statute of nationality on the morrow of Partition. But the matter of Indians abroad, across the British empire (Burma, Sri Lanka, Fiji...) also had to be kept in mind.<fnref n="337" /> As these decolonised countries defined their own nationality laws, many Indians were reduced to either statelessness or secondary citizens. In short, they fell into a state of refugeehood, understood as a sum of predicaments, status, and rights.<fnref n="338" /> While no definition was given of

<footnote n="335">³³⁵ Urvashi Butalia, *The Other Side of Silence: Voices from the Partition of India* (Penguin Books India 1998) 57.</footnote>

<footnote n="336">³³⁶ ‘Constitution Making Process: Constituent Assembly’ (*Constitution of India*).</footnote>

<footnote n="337">³³⁷ *Constituent Assembly Debates*, vol IX s 9.116.138, 11 August 1949.</footnote>

<footnote n="338">³³⁸ Cathryn Costello, ‘On Refugeehood and Citizenship’ in Ayelet Shachar and others (eds), *The Oxford Handbook of Citizenship* (OUP 2017).</footnote>
"refugee", one element showed up throughout the debates: refugees in India were individuals who had fled in the context of Partition, fearful for their lives and security.

As already stated, even though international law explicitly distinguishes between nationality and citizenship, ICA debates focused only on citizenship. Did they for all that ignore the questions derived from the issue of nationality? A close examination of these debates and political declarations of these years reveals that the obsession with citizenship led to nationality being approached through the rights of the citizens.

A significant space was occupied by the question of minorities and their rights in the new Republic. Aware of the political importance of reassuring minority groups and calming fears about India becoming a theocracy like Pakistan, the ICA President, Rajendra Prasad, affirmed the principle of equality that would guide the future position of the government:

> To all the minorities in India we give the assurance that they will receive fair and just treatment and there will be no discrimination in any form against them. Their religion, their culture and their language are safe and they will enjoy all the rights and privileges of citizenship, and will be expected in turn to render loyalty to the country in which they live and to its constitution.<fnref n="339" />

His discourse carried a reassurance about their rights but equally mentioned their duties, mainly loyalty to their country. Despite official proclamations, heated arguments took place in the Assembly over who was Indian, the grounds on which Indian citizenship would be based, and even the prescriptive date and year for granting citizenship. Two elements stand out in this debate: to begin with, the citizenship question came to be inevitably linked with religious identity; unwittingly, because of the centrality of religious conflicts in the formation of the nation, religion was inextricably woven into the question of citizenship. Muslims were held responsible for the amputation of India, resentment ran high against Muslims who had opted for Pakistan, and their killings of Hindus. Thus, Muslims who remained in India became easy target of such anger, as illustrated in the Urdu novelist Ismat Chughtai story "Garm Hawa",<fnref n="340" /> popular anger was fuelled by right wing Hindu groups. In turn, this gave rise to a further conflictual issue, mainly the delicate matter of which citizens could claim compensation for loss of agricultural land and the even more thorny issue of evacuee property. These aspects

<footnote n="339">³³⁹ *Constituent Assembly Debates*, vol V, s 5.36.6, 14 August 1947.</footnote>

<footnote n="340">³⁴⁰ *Garm Hawa* (Directed by Mysore Srinivas Sathyu, 1973).</footnote>
were of crucial interest to Hindu, Punjabi and Sikh lobbies in the Assembly speaking for their
communities' losses in the recent violence. At the same time, less orthodox, partisan groups,
led by Nehru or Ambedkar argued for the State's commitment to secularism, and the need to
incorporate more universal human international principles of equity and justice while deciding
the laws of citizenship. The debate on the proposed constitutional Article 5 (citizenship), which
for the most part was discussed on 10, 11 and 12 August 1949, invited 130 amendments. In
fact, Nehru declared that the articles on citizenship had "probably received far more thought
and consideration [...] than any other article contained in this constitution".<fnref n="341" />

Jurist and politician B. R. Ambedkar proposed the first draft of the article surrounding citizenship (Article 5).<fnref n="342" /> It distinguished five categories of citizens: (i) individuals domiciled in India and born in India (Article 5-A-B); (ii) individuals domiciled in India, not born in India but residing in India (Article 5-C); (iii) individuals residing in India but who migrated to Pakistan (Article 5-A); (iv) individuals residing in Pakistan and have migrated to India (Article 5-A); and (v) individuals born of parents born in India but residing outside India (Article 5-B). These five categories contained, three main doctrines: *jus soli*, *jus sanguinis* and *jus domicilii*.

According to P. S. Deshmukh,<fnref n="343" /> social activist, educationist and defender of peasants’ rights, the drafting committee’s citizenship provision formulated by Ambedkar would make “Indian citizenship the cheapest on earth”.<fnref n="344" /> For Deshmukh, *jus soli* was problematic, and he was dissatisfied with citizenship by birth. He argued that in this case, even a child born of a lady while she was transiting through the port of Bombay would get citizenship.<fnref n="345" /> Consequently, he urged one amendment: being born in India should not be sufficient, the child should be born of Indian parents.<fnref n="346" /> Despite such opposition, *jus soli* remains the main doctrine of Indian citizenship. Another element came to reinforce the choice of *jus soli* as the main basis

<footnote n="341">³⁴¹ *Constituent Assembly Debates*, vol IX, s 9.117.24, 12 August 1949.</footnote>

<footnote n="342">³⁴² ibid IX, s 9.115.154-155, 10 August 1949. See [Annex - 1](#).</footnote>

<footnote n="343">³⁴³ Deshmukh, as elected member of the Assembly from Central Provinces and Berar played a key role in the CAD on citizenship and federalism.</footnote>

<footnote n="344">³⁴⁴ *Constituent Assembly Debates*, vol IX, s 9.116.26-27, 11 August 1949.</footnote>

<footnote n="345">³⁴⁵ ibid s 9.116.27, 11 August 1949.</footnote>

<footnote n="346">³⁴⁶ ibid s 9.116.11, 11 August 1949.</footnote>
of citizenship: the Partition context and the possibility of considering the residence (jus domicilii). Equally the proposed article (5-A) included rights of persons who migrated from Pakistan to India during partition, and Article 5-AA regulated citizenship claims of persons who migrated to Pakistan. Bhopinder Singh Mann, Sikh member of the Assembly from East Punjab, argued against the Drafting Committee's proposal laying down 19 July 1948 as the prescription date to grant Indian citizenship. He maintained that any person who fled the partition riots in Pakistan and came over to India before the adoption of the Constitution should be automatically granted Indian citizenship. On the contrary, after the Constitution's adoption, the person had to go to a registering authority and prove a six-month domicile in India in order to claim Indian citizenship.<fnref n="347" /> Discussion on *jus domicilli* was marked by the adoption of the "Permit system" (19 July 1948). This ordinance declared that no person could enter India after that date unless he had a permit. It established temporary and permanent permit for resettlement or permanent return. Only the last category of permit – mainly, permit for resettlement or permanent return – would be included in Article 5. Following the *jus domicilii* principle, Thakur Das Bhargava<fnref n="348" /> pushed for an extension of the naturalization process from five to ten years.

While *jus soli* and *jus domicilii* were in the frontline of the debate, *jus sanguinis* was largely accepted and considered as the primarily source of citizenship acquisition.<fnref n="349" /> An interesting and quick debate in response to Shibban Lal Saxena's question,<fnref n="350" /> addressed the problem of defining 'Indian parents' for the *jus sanguinis* principle.<fnref n="351" /> It ended rapidly with Deshmukh drawing a parallel with the Polish Constitution, which does not define who is a Polish citizen,<fnref n="352" /> other than saying they are persons born of Polish parents in Article 34 of the Constitution. Deshmukh referred to this as a model for India.

<footnote n="347">³⁴⁷ ibid s 9.116.220, 11 August 1949.</footnote>

<footnote n="348">³⁴⁸ Congress elected Member from East Punjab, Bhargava spoke on the role of the Vice President (ibid VII, s 7.74.119 - 123, 28 December 1948.) and the ban on cow slaughter (ibid s 7.59.89 - 96, 24 November 1948).</footnote>

<footnote n="349">³⁴⁹ *Constituent Assembly Debates*, vol IX, s 9.116.32, 11 August 1949.</footnote>

<footnote n="350">³⁵⁰ The Congress Party member from the United Provinces, Saxena, favoured banning cow slaughter (*Constituent Assembly Debates*, vol VII, s 7.59.136, 24 November 1948.) and removing the ban on drugs and alcohol (ibid s 7.59.6-8, 24 November 1948.).</footnote>

<footnote n="351">³⁵¹ *Constituent Assembly Debates*, vol IX, s 9.116.35, 11 August 1949.</footnote>

<footnote n="352">³⁵² ibid s 9.116.38, 11 August 1949.</footnote>
Amongst ICA members, the critical element quickly revealed itself to be the religious factor. It made Article 5 clearly the most contested article. Deshmukh, called it “*the most ill-fated*”, proposing Amendment No. 1:

(iii) every person who is a Hindu or a Sikh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India.<fnref n="353" />

A strong group of members, largely Hindus and Sikhs, favoured an ethno-nationalist citizenship approach. They pleaded for opening citizenship to Hindus and Sikhs, while introducing restrictive clauses for other religious communities, mainly Muslims. According to Deshmukh, all Hindus and Sikhs, residing anywhere in the world, should be entitled to Indian citizenship. His position in favour of Hindus and Sikhs received support from Das Bhargava, Bhopinder Singh (speaking for Sikh refugees), and Rohini Kumar Chaudhury, representing Assamese Hindus. Finally, Amendment No.1 of List I of Amendments to Amendments, was rejected when put to the vote. It reflected the Partition trauma, which forged the view that individuals fled because of religious insecurity, and that thus the Constitution should consider the religious roots of communal violence.

Standing against this group were champions of a secular Republic, both Muslim and Hindu. They saw India as a mosaic of different communities, religions, languages, ethnies ... and argued for broader, inclusive frames for deciding citizenship. Thus, Mahboob Ali Baig Sahib Bahadur, a Muslim member from Madras, spoke against granting citizenship based on religion. He reminded assembly members of Gandhi's teachings on the fundamental oneness in religions. Brajeshwar Prasad,<fnref n="354" /> insisted that the deep-rooted fraternity between Hindus and Muslims should not be forgotten despite the recent violent events.<fnref n="355" /> He even went to the extent of proposing a common citizenship for all Asians and as a preliminary step, a common citizenship between India and Pakistan.<fnref n="356" /> R. K. Sidhva<fnref n="357" /> underlined that specifying a particular community (Hindus) for citizenship in the Constitution would look as if they were

<footnote n="353">³⁵³ ibid s 9.116.34, 11 August 1949.</footnote>

<footnote n="354">³⁵⁴ Member of the Indian National Congress, from Bihar.</footnote>

<footnote n="355">³⁵⁵ *Constituent Assembly Debates*, vol. IX, s 9.117.52, 12 August 1949.</footnote>

<footnote n="356">³⁵⁶ *Constituent Assembly Debates*, vol. IX, s 9.117.49, 12 August 1949.</footnote>

<footnote n="357">³⁵⁷ Member of the Congress from the Central Provinces and Berar.</footnote>
ignoring other communities like Parsis who, though living in Iran, must also be considered.<fnref n="358" /> Jawaharlal Nehru defended the secular principles of the state as the hallmark of every modern country. He was supported by Alladi Krishnaswamy Aiyar, a leading liberal voice from Madras, who confirmed that they could not decide citizenship on racial or religious grounds.<fnref n="359" /> The secular group prevailed at the time. Article 5 of the Constitution did not recognize citizenship by religion.

The debate on citizenship principles extended to a consideration of property as a core element. In reality, citizenship debates had an important financial implication. Muslims who had left for Pakistan still possessed property in India. The evacuated properties were to be decided by an official body, the Ministry of Relief and Rehabilitation, set up in September 1947. But in most cases, Muslim property was allocated to Hindu and Sikh refugees, and they could be evicted only on the condition if another accommodation was given to them.<fnref n="360" /> On this matter, too, community interests clashed with principles of equity and justice. Nehru argued for the latter:

> to argue against that amendment is to argue definitely for injustice, definitely for discrimination [...]<fnref n="361" />

In 1946, Nehru had highlighted the *jus sanguinis* principle during his visit to Singapore. He declared that Indians overseas would be Indian unless they chose otherwise.<fnref n="362" /> This principle opposed the Indian British law of nationality that followed a *jus soli* doctrine. The choice appeared coherent at the time for it underlined the Indian nationalist movement's opposition to the British Empire. But barely four years later, the ICA voted for the establishment

<footnote n="358">³⁵⁸ *Constituent Assembly Debates*, vol. I, s 1.18.27, 18 December 1946.</footnote>

<footnote n="359">³⁵⁹ *Constituent Assembly Debates*, vol. IX, s 9.117.40, 12 August 1949.</footnote>

<footnote n="360">³⁶⁰ Vasira Fazila and Yaccobali Zamindar, *The Long Partition and the Making of Modern South Asia: Refugees, Boundaries, Histories* (Viking Books 2007) 28–29.</footnote>

<footnote n="361">³⁶¹ *Constituent Assembly Debates*, vol IX, s 9.117.34, 12 August 1949.</footnote>

<footnote n="362">³⁶² Gyanesh Kudaisya, 'Indian Leadership and the Diaspora' in Brij Vilash Lal (ed), *Encyclopaedia of the Indian diaspora* (OUP 2006) 84.</footnote>
of an inclusive *jus soli* regime,<fnref n="363" /> justifying it by its presumed “enlightened modern civilized” aspect.<fnref n="364" />

It was the Punjab situation and the communal tensions on the Western border, that strongly coloured the tone and outcome of the debate on citizenship. Starting from a debate in which the religious element played an important role, the final decision of the ICA would finally discard this dimension and rely essentially on territorial criteria to define citizenship.

### 1.3. Judicial understandings and interpretation of nationality

In many cases dealing with individuals' citizenship, in practice, Courts were inclined to defer the question to the executive.<fnref n="365" /> Yet, a shift occurred. In *Md. Elabi v. The State of West Bengal* (2008),<fnref n="366" /> the Calcutta High Court dismissed the petitioner's claim of being an Indian citizen. Determining who was a citizen and who was a foreigner became crucial in a post-Partition context. Indian Court rulings not only determined the difference between aliens and citizen, but equally, provided reminders that the cut-off date for citizenship established in the Constitution had affected individuals who were not aware of the legislative transitions and changes. In *Shabbir Hussain v. The State of Uttar Pradesh* (1951), the Court argued:

> The mere visits of persons residing in the territories of India to those now included in Pakistan between the 1st March and 15th August 1947 could not have been considered sufficient to take away citizenship right.<fnref n="367" />

#### 1.3.1. Articles 5 to 11 of the Constitution

At the conclusion of the debate around Ambedkar's draft, the ICA adopted the Constitution on 26 November 1949, enacting it on 26 January 1950. It contains seven articles relating to citizenship (Article 5 to 11). Article 5 defines an Indian citizen at the "commencement of the Constitution" as any individual who lives on "the territory of India",

<footnote n="363">³⁶³ Niraja Gopal Jayal, *Citizenship and Its Discontents: And Indian History* (n 300) 52.</footnote>

<footnote n="364">³⁶⁴ *Constituent Assembly Debates*, vol III, s 3.18.183, 29 April 1947.</footnote>

<footnote n="365">³⁶⁵ Gopal Jayal, *Citizenship and Its Discontents: An Indian History* (n 300) 295.</footnote>

<footnote n="366">³⁶⁶ *Md Elabi v the State of West Bengal* [2008] Calcutta High Court CRA 25 of 2014.</footnote>

<footnote n="367">³⁶⁷ *Shabbir Hussain v The State of Uttar Pradesh* [1951] Allahabad High Court AIR 1952 All 257.</footnote>
was born in India or one of whose parents was born here, or who has been a resident of India for not less than five years preceding the commencement of the Constitution. Article 5-A states that (i) those who came before 19 July 1948 are automatically Indian's citizens; (ii) those who have come after 19 July 1948 and before the commencement of the Constitution are entitled to citizenship provided the procedure for attainment of citizenship is followed. Article 6 states that migrants from Pakistan are citizens of India if they, their parents or grandparents were born in India (as defined by the Government of India Act, 1935), if they migrated to India before 19 July 1948, and lived here since, or if they applied for citizenship before the commencement of the Constitution, even if they migrated on or after 19 July 1948. According to Article 7, anyone migrating from India to Pakistan after 1 March 1947, will not be an Indian citizen. In contrast, those who advocated Article 7 favoured a more inclusive conception of legal citizenship. They argued that the Muslim migrants who had left India because of the communal riots and violence should be welcomed back. Their loyalties and intentions could not be treated as suspect because of the uncertain situation, to quote Mahajan MC, former SC Justice, in *Central Bank v. Ram Narain* (1954).<fnref n="368" /> Article 8 stated that an individual, who lives outside India but was born in India, or whose parent or grandparent was born in India, can apply for citizenship with an Indian diplomatic or consular representative where he/she lives. Article 9 states that voluntarily acquiring the citizenship of another country leads to the loss of Indian citizenship. Article 10 argues that a person considered a citizen under the provisions of Part II will also be subject to the citizenship law made by Parliament. Finally, Article 11 says that nothing in Part II shall detract from the Parliament's power to enact a law on citizenship, to make any provision with respect to acquisition and termination of citizenship and every other matter concerning citizenship.

### 1.3.2. Residency from women and children's perspective

Citizenship was an eminently politically sensitive question as it affirmed the newly created State's rights over its population. Once debated and adopted in the Assembly, it was also open to judicial understanding and interpretations. Courts were called to rule on controversial cases, and some of the decisions during these years shed light on the arguments and reasonings mobilized that would in their turn create significant precedents. The respective

<footnote n="368">³⁶⁸ *Central Bank of India v Ram Narain* [1954] SC of India 1955 SCR (1) 697.</footnote>
positions and differences between the executive and the judiciary on this matter merit
discussion. They reflect (i) the independence of the judicial branch in deciding citizenship
issues, and (ii) the judiciary's role in advancing the cause of human rights over and above
national political concerns. In fact, although the Indian Constitution does not contain an explicit
provision on the separation of powers, the judiciary's independence is an essential principle in
a democratic system. It is the SC jurisprudence which sustains the separation of powers doctrine
at the level of basic structure of the Constitution.<fnref n="369" /> This independence ranges from tenure
security to freedom from monetary needs and influence.<fnref n="370" />

From 1951 to 2009, out of thirty-eight High Court and SC rulings, approximately half the
cases concerning citizenship were related to the legal impact of Partition on individuals from
the two new countries,<fnref n="371" /> and especially on the question of domicile. Only a few cases on
citizenship since 1950 are unrelated to the event of Partition. One of these is the *State Trading Corporation* (1963) case,<fnref n="372" /> where the issue was whether or not the Corporation could be an
Indian citizen and thus enjoy the rights belonging to a citizen.

In many of the cases concerning individuals, two recurring elements revolved around: (i) the
act of crossing borders during Partition; and (ii) the Indian Constitution or the Citizenship Act
of 1955. The combination of these two elements led to considerable litigations between the
State and individuals.

The absence of definition concerning “domicile” in Article 5 of the Constitution was at
the heart of judicial cases, and led to differences between domicile of origin and domicile of
choice. In *Louis de Raedt v. Union of India* (1991) the SC ruled that residence in the country
could not constitute domicile, and that intention to make the country a permanent home needed

<footnote n="369">³⁶⁹ Ram Jawaya Kapoor v State of Punjab [1955] SC of India AIR 1955 SC 549; Indira Gandhi v Raj Narain [1975] SC of India 1975 Supp CC1; State Bihar v Bal Mukund Sah [2000] SC of India AIR 2000 SC 1296.</footnote>

<footnote n="370">³⁷⁰ Arghya Sengupta, *Independence and Accountability of the Higher Indian Judiciary* (Cambridge University Press 2019); Dr More Atul Lalasaheb, *An Appraisal Of The Judicial System In India: A Critical Study On Judicial Independence Vis-À-Vis Judicial Accountability* (Lulu Publication 2015); Rana Ayyub, ‘Opinion | The Destruction of India’s Judicial Independence Is Almost Complete’ *Washington Post* (24 March 2020).</footnote>

<footnote n="371">³⁷¹ Gopal Jayal, *Citizenship and Its Discontents: An Indian History* (n 300) 68.</footnote>

<footnote n="372">³⁷² *State Trading Corporation of India v The Commercial Tax Officer* [1963] SC of India 1963 AIR 1811.</footnote>
to be demonstrated.<fnref n="373" /> For the Court, the fact that Louis de Raedt had applied in 1980 for a one-year extension of his permit did not indicate the will to reside permanently in India. The SC recalled the importance of state of mind for the acquisition of domicile of choice:

> it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.<fnref n="374" />

The Indian SC recalled the principle of *animus manendi* on several occasions. Yet the Court underlines the fact that intention and place of residence are essential even if by themselves they are not sufficient. In *Central Bank of India v. Ram Narain* (1951), Ram Narain was accused of an offence committed in Pakistan in November 1947. The defendant had taken an advance from the Central Bank of India on behalf of his firm. However, during Partition, the goods were stolen by Ram Narain. Narain had moved his family to Gurgaon, a city near Delhi, and joined them in November 1947. For the Indian jurisdiction, the question was whether or not India had jurisdiction on this case. Ram Narain therefore pleaded that at the time of the offence he was not an Indian citizen but rather a Pakistani national and consequently, Indian courts did not have jurisdiction. The Punjab and Haryana High Court ruled that Narain could not be regarded as a “potential or prospective citizen of India”,<fnref n="375" /> until he had migrated to India. Thus, Indian courts did not have jurisdiction over this case. The SC judgment in 1954 went further, and ruled that despite the *animus* that could be perceived in Ram Narain family relocating to India, Narain did not become an Indian citizen until he left Pakistan for India. Thus, without relocation and despite *animus manendi*, Ram Narain could not be considered domiciled in India at the time of the offence.<fnref n="376" />

After 1 March 1947, women's domicile was closely linked to their fathers and husbands' choice of domicile. Both Pakistan and India governments considered women as subordinate or as victims.<fnref n="377" /> This approach created a patriarchal form of citizenship, for not only did women

<footnote n="373">³⁷³ *Louis de Raedt v Union of India* [1991] SC of India 1991 SCR (3) 149 [3.1].</footnote>

<footnote n="374">³⁷⁴ *Louis de Raedt* (n 383).</footnote>

<footnote n="375">³⁷⁵ *Ram Narain v Central Bank of India LTD* [1951] Punjab and Haryana High Court AIR 1952 P H 178.</footnote>

<footnote n="376">³⁷⁶ *Central Bank of India v Ram Narain* (n 378).</footnote>

<footnote n="377">³⁷⁷ *Butalia, The Other Side of Silence* (n 345) 109.</footnote>
not have a choice concerning their citizenship, but women's citizenship was now subjected to a double domination: (i) the citizenship of the father or the husband; and (ii) the religion at birth.

Women's citizenship was an extension of their husband's citizenship. Thus, if a woman had migrated from India to Pakistan with her husband before December 1947, she would lose her Indian domicile and consequently lose her citizenship. However, judicial interpretation could introduce deviant interpretations. Thus, in the case of *Kumar Amar*, the SC in 1955 chose to decide the woman's citizenship independently of her husband, and ruled that Article 7 of the Constitution did not apply in her situation, as despite being married to an Indian citizen, Kumar Amar had gone to Pakistan with an intention to establish a permanent domicile.<fnref n="378" /> This case reversed the trend of women's legal dependence on their husband or father and the SC accepted that women could migrate on their own.

This subordination of women's citizenship to their husband's was problematic in the case of abducted women, whose number during Partition was estimated to be 100,000.<fnref n="379" /> The recovery program established by India and Pakistan seeking to restore biological citizenship to women, treated them as integral parts of the nation, therefore, to be protected. This program introduced in the aftermath of Partition, targeted abducted women forced to live with men of the other religious community: both Muslim women forced to live in India, and Hindu and Sikh women in Pakistan. Indeed, the Abducted Persons (Recovery and Restoration) Act passed in December 1949 by the ICA, set a date, after which even mixed marriages were treated as cases of abducted women.

Children's situation too was complicated. Despite the principle that minors accompanying their fathers to Pakistan in 1947 were considered to have migrated and therefore lost their Indian citizenship, Indian court rulings differed from this principle. Thus, in *Kulathil Mammu v. the State of Kerala* (1966), the SC argued that in case of a minor's migration, intention cannot be considered as the minor "could not be imputed with any such intention".<fnref n="380" />

<footnote n="378">³⁷⁸ *State of Bihar v Kumar Amar Singh* [1955] SC of India 1955 SCR (1) 1259.</footnote>

<footnote n="379">³⁷⁹ Although no reliable numbers are available, the Indian anthropologist Veena Das, who worked on this question endorses the justice of Punjab High Court, G.D. Khosla report. See: Veena Das, *Life and Words, Violence and the Descent into the Ordinary* (University of California Press 2007) 20.</footnote>

<footnote n="380">³⁸⁰ *Kulathil Mammu v the State of Kerala* [1966] SC of India 1966 SCR (3) 706.</footnote>
In 1973, the Delhi High Court in *State (Delhi Administration) v. Master Tameej*, highlighted the impossibility of a 3 or 4 year-old child having voluntarily moved from India to Pakistan with his maternal grand-parents.<fnref n="381" /> Thus, Tameej was not considered to have migrated, and his domicile could not have changed. Consequently, Maser Tameej remained an Indian citizen, with full rights as spelt out in Article 5 of the Constitution.

In the above cases, Indian Courts determined and clarified the relationship between domicile and citizenship, and established a clear correlation between domicile and migration. In 1961, the Court narrowed its interpretation and defined migration as coming to India with the intention of permanent residence.<fnref n="382" />

### 1.3.3. Citizenship through fraud

In parallel to these cases, Indian Courts also had to deal with cases where individuals had acquired Pakistani passports. Here, the Courts considered other elements to determine whether or not the individual was an Indian citizen, despite the possession of a Pakistani passport. In *State of Gujarat v. Saiyad Aga Mohamed Saiyedm Ohmed* (1978), the Court ruled that the possession of a Pakistani passport was not a crucial proof of Pakistani nationality:

> If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be provided an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship to obtain a passport from a foreign country.<fnref n="383" />

However, the value of official documents such as passports, habitually considered as proof of a national identity, could also be questioned. Passports were granted on the submission of documents like electoral cards or ration cards that offered proof of residence. But in certain situations, illegal migrants from Bangladesh were judged to have acquired these documents far too easily through the intermediary of political parties keen on enlarging their vote banks. Sometimes, Courts judged them to be insufficient proof of Indian citizenship. In *Azia Begum v.*

<footnote n="381">³⁸¹ *State (Delhi Administration) v Master Tameej* [1973] Delhi High Court 1974 CriLJ 100.</footnote>

<footnote n="382">³⁸² *Smt Shanno Devi v Mangal Sain* [1960] SC of India 1961 SCR (1) 576.</footnote>

<footnote n="383">³⁸³ *State of Gujarat v Saiyad Aga Mohamed Saiyedm Ohmed* [1978] Gujarat High Court (1979) 1 GLR 71 [§15].</footnote>
*State* (2008), the Court ruled that acquisition of an Indian passport was based on “forged and fabricated documents”, and therefore deemed it to be a case of fraudulent acquisition of nationality.<fnref n="384" />

### 1.4. The Citizenship Act, 1955 and its evolution

Like the Constitution, the Citizenship Act, 1955 tried to settle the legacy of Partition by interpreting the elements enunciated in the Constitution. The Citizenship Act mainly classifies citizenship by acquisition: birth (Section 3), descent (Section 4), registration (Section 5)<fnref n="385" />, naturalization (Section 6) and incorporation of territory (Section 7). Section 3 and 6 directly address the concern with illegal immigration from Bangladesh. Section 7 corresponds to a will to provide legal elements for overseas citizenship of India.

In 2003, the CAA brought about changes in the Citizenship Act, 1955. Paragraph 2 of section 3 originally laid down two exceptions for citizenship at birth: (a) if either one of the parents possesses diplomatic immunity; and (ii) if one of the parents is considered as an enemy alien, and if the birth occurs in a place under enemy occupation. While these two exceptions remained in the CAA, 2003, two new elements were included in paragraph 1 in response to the influx of migrants from Bangladesh:

(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where- I

(i) both of his parents are citizens of India; or

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

Section 3(b) enables citizenship acquisition by any individual born before the 2003 Amendment on the condition that at the time of birth one of the parents is an Indian citizen. On the contrary,

<footnote n="384">³⁸⁴ Azia Begum v State [2008] Delhi High Court WP (Crl) 677/2008 [9].</footnote>

<footnote n="385">³⁸⁵ National Human Rights Commission v State of Arunachal Pradesh [1996] SC of India 1996 SCC (1) 742.</footnote>
section 3(c) excludes any individual born not only after the 2003 Amendment but also born from one parent who is an illegal migrant.

The CAA, 1992 allowed India to remain outside the set of 27 countries in 2015, which had a discriminatory policy towards women by conferring their nationality to their children.<fnref n="386" /> Until 1992, Section 4 (citizenship by descent) established that individuals born outside India could access citizenship if the father was an Indian citizen:

(2) A person born outside India, -

(a)on or after the 26th January, 1950, but before the commencement of the Citizenship (Amendment) Act, 1992, **shall be a citizen of India by descent if his father is a citizen of India at the time of his birth.**<fnref n="387" />

The 1992 Amendment inaugurated a gender-neutral policy towards individuals born outside India. Consequently, the father or the mother, citizen of India, can transmit his or her citizenship (jus sanguinis doctrine) to their children. The rights were changed with the 2004 and 2005 Amendments on residence requirement, first from five years to two years, to finally one year in the CAB, 2005.

In the 2004 and 2005 Amendments, a new category appeared: the Overseas Citizens of India (OCI). It includes an individual who is eligible to be a citizen of India at the moment of adoption of the 1950 Constitution or is a child or grandchild of an Indian citizen. An exception related to OCI was introduced in the 2004 and 2005 Amendments, as individuals living in Pakistan and Bangladesh could not apply in this category. Though OCI's have a lifelong multiple-entry visa to India, they are not allowed to vote or contest election to public office or be recruited for government jobs. These individuals are thus considered citizens but not nationals of India, as the country does not accept double nationality.

<footnote n="386">³⁸⁶ ‘Background Note on Gender Equality, Nationality Laws and Statelessness 2015’ (UNHCR 2015).</footnote>

<footnote n="387">³⁸⁷ Section 4 The Citizenship Act, 1955 [emphasis added].</footnote>
In 1950, at the end of heated debates, the Constitution based citizenship on *jus soli*. The transformations of Indian society, the economic strength and influence of a strong, middle-class diaspora has more recently led to expand citizenship into different categories, beginning with Persons of Indian Origin, then extending to OCI, and Non-Resident Indians. But *jus soli* intervenes nonetheless, as these are only weak categories of citizenship, for they lack the indispensable link with national territory and soil.

## 1.5. Conclusion

Three principal opposing interpretations marked the approach to citizenship: (i) Gandhi's vision, quite removed from standard contemporary notions of citizenship, saw individuals as autonomous, unconstrained by their relationship with the colonial State; (ii) the Nehruvian model perceived citizenship as a means of creating national unity, and defined it in universal, secular terms, divorced from religion, and (iii) a Hindu nationalist approach that favoured an ethno-nationalist model. This sought to privilege Hindus and Sikhs while treating Muslims as foreigners or as citizens whose loyalty had to be proved before they were admitted to the ranks of Indian citizens.

Following Gandhi's assassination in 1948, Prime Minister Nehru banned the Rashtriya Swayamsevak Sangh (RSS) and succeeded in imposing his ideas of citizenship. Indian citizenship laws reflected his influence, backed by the lawyer B. R. Ambedkar, who belonged to the caste of so-called 'untouchables'. Both were determined to affirm the principle of equality as a constitutional guarantee. The Nehruvian approach maintained a status quo of populations in the two divided countries, India and Pakistan. Indian law therefore did not distinguish between Hindu and Muslim arrivals from Pakistan or Bangladesh, except in the context of the immediate post-Partition years, and that too only by implication. Both categories of migrants were foreigners. If they wished to become Indian citizens, they could, but only through a legal process resembling naturalization.

Nehru's ideas of citizenship based on universal principles, were expanded by Indira Gandhi, who as prime minister from 1966 onwards, introduced an amendment to the
Constitution Preamble that explicitly used “secular” to define India. Article 51-A spelt out ten basic duties of every citizen that included protecting the unity and integrity of India, and promoting a spirit of common brotherhood beyond sectional diversities. In this way, a universalist, national and secular definition of Indian citizenship was further legitimised.<fnref n="388" /> However, this legislation varies with the Indian political landscape.

## 2. Contemporary politics: using nationality to build a Hindu nation

India's political landscape is dominated by six national political parties: Bahujan Samaj Party, BJP, Communist Party of India (Marxist), Indian National Congress, National People's Party and since 2012 the Aam Aadmi party. Currently two parties have been in government the longest (Table 1): Congress Party (54 years<fnref n="389" />) and the BJP (15 years<fnref n="390" />). The Bofors Affair (1986) – a corruption case leading to the fall of the Rajiv Gandhi government – insurgency movements in Punjab, Assam and Kashmir, and the rise of Hindu nationalism spearheaded by the BJP at the beginning of the 1990s precipitated the end of the Congress Party's dominance.<fnref n="391" /> This political turbulence, notwithstanding 5 national elections in less than 10 years (1989, 1991, 1996, 1998 and 1999), brought minority governments to power.<fnref n="392" /> But more importantly, it deepened a crisis of Indian secularism and the state of liberal democracy with the emergence of the BJP and its arrival in power.<fnref n="393" />

<caption>Table 1: Prime ministers of India</caption>

<footnote n="388">³⁸⁸ Constitution of India.</footnote>

<footnote n="389">³⁸⁹ Jawaharlal Nehru, Gulzarilal Nanda, Lal Bahadur Shastri, Indira Gandhi, Rajiv Gandhi, P. V. Narasimha Rao and Manmohan Singh.</footnote>

<footnote n="390">³⁹⁰ Atal Bihari Vajpayee and Narendra Modi.</footnote>

<footnote n="391">³⁹¹ See: Atul Kohli, *Democracy and Discontent: India's Growing Crisis of Governability* (Cambridge University Press 1991).</footnote>

<footnote n="392">³⁹² See: ibid; Atul Kohli, *The Success of India's Democracy* (Cambridge University Press 2001); Debasish Roy Chowdhury and John Keane, *To Kill a Democracy: India's Passage to Despotism* (OUP 2021); Gyan Prakash, *Emergency Chronicles: Indira Gandhi and Democracy's Turning Point* (Princeton University Press 2021).</footnote>

<footnote n="393">³⁹³ See: Tambiah Stanley, 'The Crisis of Secularism in India' in Bhargava Rajeev (ed), *Secularism and its Critics* (OUP 1998); Anuradha Dingwaney Needham and Rajeswari Sunder Rajan, *The Crisis of Secularism in India* (Duke University Press 2007); Srimati Basu, 'Shading the Secular: Law at Work in the Indian Higher Courts' (2003) 15 *Cultural Dynamics* 131.</footnote>
<table><thead><tr><td>Prime Minister</td><td>Period of Office</td><td>Party</td></tr></thead><tbody><tr><td>Jawaharlal Nehru</td><td>1947-1964</td><td>Congress</td></tr><tr><td>Lal Bahadur Shastri</td><td>1964-1966</td><td>Congress</td></tr><tr><td>Indira Ghandi</td><td>1966-1977</td><td>Congress</td></tr><tr><td>Morarji Desai*</td><td>1977-1979</td><td>Janata</td></tr><tr><td>Choudhary Charan Singh</td><td>1979-1980</td><td>Janata</td></tr><tr><td>Indira Gandhi</td><td>1980-1984</td><td>Congress</td></tr><tr><td>Rajiv Gandhi</td><td>1984-1989</td><td>Congress</td></tr><tr><td>Vishwanath Pratap Singh*</td><td>1989-1990</td><td>Janata Dal</td></tr><tr><td>Chandra Sekhar</td><td>1990-1991</td><td>Janata Dal</td></tr><tr><td>P.V. Narasimha Rao</td><td>1991-1996</td><td>Congress</td></tr><tr><td>Atal Behari Vajpayee*</td><td>1996 (13 days)</td><td>BJP</td></tr><tr><td>H.D. Deve Gowda*</td><td>1996-1997</td><td>Janata Dal / United Front</td></tr><tr><td>Inder Kumar Gujral</td><td>1997-1998</td><td>Janata Dal / United Front</td></tr><tr><td>Atal Behari Vajpayee</td><td>1998-2004</td><td>BJP / National Democratic Alliance</td></tr><tr><td>Manmohan Singh</td><td>2004-2014</td><td>Congress / United Progressive Alliance</td></tr><tr><td>Narendra Modi</td><td>2014 -</td><td>BJP</td></tr></tbody></table>

* The Prime Minister ended office with his resignation and not an electoral defeat

Since the beginning of the 1990s, particularly after the destruction of the mosque at Ayodhya (1992), Hindu nationalism in India gained ground. Sudipta Kaviraj links the decline of the Congress Party and the rise of the BJP to two elements: firstly, the failure to develop a common political language with voters,<fnref n="394" /> and secondly, the Congress Party's clientelist

<footnote n="394">³⁹⁴ Sudipta Kaviraj, 'On State, Society and Discourse in India' in James Manor (ed), *Rethinking Third World Politics* (Longman 1991).</footnote>
relations with upper social classes. In 1991, the BJP's electoral victory announced its emergence as a critical political actor.<fnref n="395" />

Politically, it is interesting to note that the BJP support has expanded over the years. Initially, it was perceived as an upper-caste party, but rapidly it made inroads amongst the unprivileged and subordinate groups.<fnref n="396" /> The link between the increase of communal violence and the BJP governments highlights the importance of political control, affecting democracy and the rule of law. Around 1989-90, violence against Muslims and Christians in Rajasthan, Gujarat and Orissa, escalated under BJP governments.<fnref n="397" /> The trend continues today, notably in Uttar Pradesh.

Hindu Right wing movements polarise religious identities, highlighting differences, especially between Hindus and Muslims, seeing religious belonging as a test of national loyalty, and questioning the national sentiment of minorities.<fnref n="398" /> Significant changes occurred in the right of nationality mobilising laws protected by IHRL. Developments around the NRC and the CAA further this political agenda, placing individual membership to a religious group above a legal connection to the State. The two processes, the NRC and the CAA, seems distinct at first sight, in reality they converge in this new legal conception: the end of individualism in Indian law. While IHRL privileges individualism, according to which the individual must be perceived as a separate entity, Indian law, through the right to nationality, undermines this idea and develops the idea of collectivity.

<footnote n="395">³⁹⁵ Shaila Seshia, 'Divide and Rule in Indian Party Politics: The Rise of the Bharatiya Janata Party' (1998) 38 Asian Surv. 1036, 1045.</footnote>

<footnote n="396">³⁹⁶ Shubh Mathur, *The Everyday Life of Hindu Nationalism: An Ethnographic Account* (Three Essays Collective 2008) 7.</footnote>

<footnote n="397">³⁹⁷ ibid 4-Communities and Power.</footnote>

<footnote n="398">³⁹⁸ Sunil Khilnani, *The Idea of India* (Hamish Hamilton 1997) 59.</footnote>
## 2.1. Controlling citizenship through the National Register of Citizens

The new NRC published in 2019 sought to update the earlier 1951 NRC – incomplete particularly in Muslim majority district – whose purpose was to record citizens and their goods. In terms of cost, the NRC has cost 12 billion rupees (126 million pound) to implement the exercise in Assam.<fnref n="399" /> It was initiated and supervised by the SC since 2014.<fnref n="400" /> The NRC coordinator reported directly to the SC.<fnref n="401" /> Consequently, the SC became an executive supervisory body in an administrative mechanism.<fnref n="402" />

The project of compiling a NRC added further complexity to the debate surrounding the CAA. The NRC is an official list of legal Indian citizens. According to Home Minister Amit Shah, NRC's aims to identify and expel infiltrators before 2004.<fnref n="403" /> In Assam, in 2018 of 33 million individuals who had submitted documents, 4 million (12%) were not on the list when it was first published.<fnref n="404" /> In 2019, in its final publication 1.9 million individuals were excluded: 5.56 lakhs Hindus and 11 lakhs Muslims.<fnref n="405" />

According to the Associate Fellow at the Centre for Policy Research, Angshuman Choudhury, the NRC operation clearly caused deaths, along with mental health issues. Mental health problems carry a strong stigma in India, but they are mostly disregarded and underestimated.<fnref n="406" /> The National Campaign Against Torture, confirmed 31 cases of suicides between 2015 and 2019 due to NRC.<fnref n="407" /> They were also linked to the mental trauma of exclusion from the NRC

<footnote n="399">³⁹⁹ ‘Annual Report 2018-19’ (Government of India - Ministry of Home Affairs 2020) 278.</footnote>

<footnote n="400">⁴⁰⁰ Assam Sanmilita Mahasangha v Union of India [2014] SC of India WP (C) No. 562 Of 2012.</footnote>

<footnote n="401">⁴⁰¹ Interview with Bhaskar Barua (5 June 2022), Guwahati (India), Assamese consultant, by Zoom.</footnote>

<footnote n="402">⁴⁰² Anubhav Dutt Tiwari and Prashant Singh, ‘Experiencing the Violence of Law: Contextualising the NRC Process in Assam’ (2021) 12 Jindal global law review 29, 46.</footnote>

<footnote n="403">⁴⁰³ ‘Amit Shah Sets Pan-India NRC Deadline: Will Drive out Illegal Immigrants before 2024’ *The Indian Express* (2 December 2019).</footnote>

<footnote n="404">⁴⁰⁴ Rohini Mohan, “‘Worse than a Death Sentence’: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship” *Scroll.in* (30 July 2019); Arunabh Saikia, “In a Hindu Colony in Assam’s Barak Valley, Every Family Has Someone Left out of the NRC” *Scroll.in* (4 August 2018).</footnote>

<footnote n="405">⁴⁰⁵ Abhishek Saha, ‘2019 NRC List Not “Final”; 4,700 Names Ineligible, Guwahati HC Told’ *The Indian Express* (10 December 2020).</footnote>

<footnote n="406">⁴⁰⁶ Interview with Angshuman Choudhury (21 October 2022), Associate Fellow at the Centre for Policy Research, New Delhi (India)</footnote>

<footnote n="407">⁴⁰⁷ ‘Assam’s NRC: Four Million Tales of Mental Torture, Trauma & Humiliation’ (National Campaign Against Torture 2019) 51.</footnote>
harassment from NRC authorities, fear of detention and deportation, fear of losing their own or family members' citizenship.<fnref n="408" /> Individuals living in poverty were particularly affected.<fnref n="409" />

Official certificates informing them of their exclusion were never received, and no list was published.<fnref n="410" /> Rapidly, the discriminatory aspect of NRC became apparent with most Muslims excluded from the final list. Even for those championing the NRC cause, two problems arose: (i) the operating methodology; and (ii) its implementation.<fnref n="411" />

### 2.1.1. Political genesis

In 2014 the SC ordered that the NRC be updated in all parts of Assam in accordance with the Citizenship Act, 1955, and the Citizenship Rules, 2003.<fnref n="412" /> The state-specific exercise of constituting a data base of legal citizens of India with their demographic information involved the identification and deportation of illegal migrants, so as to preserve the ethnic uniqueness of Assam. The Assam NRC was mandated as a special exception of the state in the Citizenship Act, 2003. Only those individuals who could prove they came to India before 24 March 1971, a day before Bangladesh's independence could qualify, as citizens of India.

Besides mobilising at least 52,000 state government officials, hundreds social service units (Seva Kendra's) were engaged to process the documents under the apex court's supervision.<fnref n="413" /> Not only was there an important lack of front-line officials, but officials often received training only for one day.<fnref n="414" /> In addition, officials received different information about the type of documents required, leading to increased arbitrariness. In Upper Assam, out of 48

<footnote n="408">⁴⁰⁸ ibid 51–53.</footnote>

<footnote n="409">⁴⁰⁹ ibid 53–54.</footnote>

<footnote n="410">⁴¹⁰ Interview with Ravi Hemadri (21 October 2022), New Delhi (India), social activist and secretary of the Development and Justice initiative.</footnote>

<footnote n="411">⁴¹¹ Interview with Barua (n 411).</footnote>

<footnote n="412">⁴¹² *Assam Sanmilita Mahasangha v Union of India* (n 410).</footnote>

<footnote n="413">⁴¹³ ‘Understanding NRC: What It Is and If It Can Be Implemented across the Country’ *The Economic Times* (23 December 2019).</footnote>

<footnote n="414">⁴¹⁴ Jessica Field and others, ‘Bureaucratic Failings in the National Register of Citizens Process Have Worsened Life for the Vulnerable in Assam’ (Development And Justice Initiative, Jindal University 2019) 4.</footnote>
people, 15% visited the office once, 15% twice and 69% more than three times to verify their papers.<fnref n="415" />

In parallel, centres (kendras), along with political and religious leaders were mobilised to help individuals acquire or submit the required legal documents.<fnref n="416" /> A majority of individuals also received help from family members and community members (graphic 1). Educated community members set up groups with necessary skills to guide community members in the process, some even received threats.<fnref n="417" /> Insufficient aid from official agents specifically to women can be explained by the latter’s isolation, fewer contact with officials because of inadequate NRC assistance infrastructure, low mobile penetration – in 2018 of 65% of women owned a phone, and only 8%, mostly in urban areas, used the internet – and digital literacy.<fnref n="418" />

<figure><img src="image_4.png" /><figcaption>Graphic 1: Type of assistance received by excluded individuals from the NRC in the Bongaigaon district - in percentage</figcaption></figure>

Source: Mapping Exclusions from The National Register of Citizens in Assam: a Baseline Study of Applicants and Excluded Persons in Bongaigaon and Barpeta districts (Development and Justice Initiative June 2019) 25.

For a central government that has affirmed its plans to weed out all illegal infiltrators from India this seems a next logical step: a pan-India extension of the Assam model through the implementation of a NPR<fnref n="419" /> would appear as asking all Indians to reconfirm their citizenship. A declaration on 18 November 2019, during a parliamentary session confirmed this

<footnote n="415">⁴¹⁵ ibid.</footnote>

<footnote n="416">⁴¹⁶ Interview with Barua (n 411).</footnote>

<footnote n="417">⁴¹⁷ Interview with Abdul Kalam Azad (14 November 2022), Amsterdam (Netherlands), researcher and member of the Miya community, by Zoom.</footnote>

<footnote n="418">⁴¹⁸ Field and others, ‘Bureaucratic Failings in the National Register of Citizens Process Have Worsened Life for the Vulnerable in Assam’ (n 424) 3; Ted O’Callahan, ‘Can Teaching Tea Workers In India To Read Have a Larger Impact?’ (Yale Insights); Oliver Rowntree, ‘Connected Women: The Mobile Gender Gap, Report 2018’ (GSMA 2018) 15.</footnote>

<footnote n="419">⁴¹⁹ The NPR corresponds to the creation of an identity database of residents in India or living in the country for the past six months or planning to live in the State for the six coming months.</footnote>
intention.<fnref n="420" /> New funds for an operation were approved by the prime minister's cabinet in December 2019 to conduct the NPR in 2020. Though government officials deny that NPR and NRC are connected, – “the data collected for the NPR will not be used in the NRC”<fnref n="421" />– NPR will include a question about parents' birthplace. Home Minister Shah refutes this connection, but Rule 4 of the 2003 Citizens Rules states that data collected in the NPR can be used to generate the NRC. This has led critics to believe that it will be used to identify “doubtful citizens,” who will then bear the burden of establishing their Indian lineage.<fnref n="422" />

### 2.1.2. Regimes of legal regulations

The Citizenship Act, 1955 clearly stated that anyone born in India on or after 26 January 1950 up to 1 July 1987 is an Indian citizen by birth. Anyone born on or after 1 July 1987, but before the commencement of the CAA, 2003, and either of whose parents is an Indian citizen at the time of his birth is an Indian citizen. Anyone born after the commencement of the CAA, 2003, and whose both parents are Indian citizens at the time of his/her birth is an Indian citizen. Those born after 26 January 1950 and residing in India without proper documents would be considered illegal immigrants. They would be subject to the Foreigners Act, 1946 and Passport (Entry into India) Act, 1920 and tribunals empowered to detect, detain and deport them. Instead of elaborating new legislation, old legislation established during colonial times was activated.<fnref n="423" />

The only exception to this is Assam, whereby according to the 1985 Assam Accord, foreigners who entered the state before 1 January 1966 would be regularized as Indian citizens.<fnref n="424" /> Those

<footnote n="420">⁴²⁰ Bista Shri Raju, ‘Regarding Long Pending Demand of People of Darjeeling Hills, Terai and Dooars, West Bengal’ 1960.</footnote>

<footnote n="421">⁴²¹ Rahul Tripathi and Sanjay Singh, ‘Government Bites NPR Bullet, Says Not Linked to NRC’ *The Economic Times* (25 December 2019).</footnote>

<footnote n="422">⁴²² Soumya Shankar, ‘India’s Citizenship Law, in Tandem With National Registry, Could Make BJP’s Discriminatory Targeting of Muslims Easier’ (*The Intercept*, 30 January 2020).</footnote>

<footnote n="423">⁴²³ Interview with Advocate Sanjay Hedge (15 October 2022), New Delhi (India), senior advocate of the Indian SC.</footnote>

<footnote n="424">⁴²⁴ Section 6A The Citizenship Act, 1955.</footnote>
settling between 2 January 1966 and 24 March 1971 were to be regularized and would get the
right to vote after a period of ten years.<fnref n="425" />

An applicant has to choose one of the documents under List A and List B. List A includes 14 documents and they had to fall within the cut-off date of 24 March 1971: (i) 1951 NRC; (ii) electoral roll up to 24 March (midnight), 1971; (iii) land and tenancy records; (iv) citizenship certificate; (v) permanent residential certificate; (vi) refugee registration certificate; (vii) any government issued license/certificate; (viii) government service/employment certificate; (ix) bank or post office accounts; (x) birth certificate; (xi) state educational board or university educational certificate; (xii) court records/processes; (xiii) passport; (xiv) any Life Insurance Company (LIC) policy.

Those who did not have any 1971 documents that mentioned their name could show any one of the documents named in this list if it mentioned their parents/grandparents along with one more document from List B, to establish a connection. List B includes: (i) birth certificate; (ii) land document; (iii) board/university certificate; (iv) bank/LIC/post office records; (v) circle officer or *gaon panchayat* secretary certificate in case of married women; (vi) electoral roll; (vii) ration card; (viii) any legally acceptable document.

From a social perspective, poor and vulnerable people, especially women, are less likely to have documents.<fnref n="426" /> For women who had married in other places and had no documents from list B to prove a family link, the state allowed: (i) circle officer or *gaon panchayat* secretary's certificate that was not necessarily on or before the 1971 date; or (ii) a ration card issued on or before the 1971 date.<fnref n="427" /> Despite, the acceptance of *gaon panchayat* certificates, in principle two-thirds of adults excluded were due to an inadmissibility of this certificate (graphic 2), women once more being more affected by it than men.

Graphic 2: Adults exclusion from the NRC

<footnote n="425">⁴²⁵ Clause 5.6 Assam Accord 1985.</footnote>

<footnote n="426">⁴²⁶ Interview with Advocate Hedge (n 433).</footnote>

<footnote n="427">⁴²⁷ ‘Pan India NRC: A Lesson to Be Learnt from Assam’ *The Economic Times*.</footnote>
<figure><img src="image_5.png" /></figure>

Source: Mapping Exclusions from The National Register of Citizens in Assam: a Baseline Study of Applicants and Excluded Persons in Bongaigaon and Barpeta districts (Development and Justice Initiative June 2019) 27 •

The non-profit Indian organisation, the NGOs Development and Justice Initiative, analysed the type of documents submitted under List B by individuals excluded (adult women and men) from the NRC in Bongaigaon district (graphic 3). It highlights the small percentage of birth certificates submitted during the NRC process.

<figure><img src="image_6.png" /><figcaption>Graphic 3: Document submitted under List B by excluded adults</figcaption></figure>

Source: Mapping Exclusions from The National Register of Citizens in Assam: a Baseline Study of Applicants and Excluded Persons in Bongaigaon and Barpeta districts (Development and Justice Initiative June 2019) 23 •

### 2.1.3. Impact on vulnerable groups

For some lawyers, this process corresponds to an expression from the computer sciences *gigo* (garbage in, garbage out), which implies that if wrong data is inserted then wrong data will come out.<fnref n="428" />

In 2017 concerns about the implementation of the NRC were being voiced. They were felt to be confirmed when the operation in Assam was completed in 2018. On 31 August 2019, residents of Assam excluded from the list were trapped in a situation where they could be

<footnote n="428">⁴²⁸ Interview with Advocate Hedge (n 433).</footnote>
classified as “illegal immigrants”. In addition, as Bangladesh refuses to open its border to these
people, and as no bilateral agreement between the two countries has been signed, these
individuals potentially risk becoming stateless.<fnref n="429" />

The majority of those excluded by the NRC were from vulnerable groups, women, children, minority groups (ethnic Bengali and the Muslim community), poor people and internally displaced persons<fnref n="430" /> (IDP). The local authorities did not consider factors, such as illiteracy, no access to administrative documents to prove their citizenship,<fnref n="431" /> internal displacement linked to natural disasters<fnref n="432" /> or violence,<fnref n="433" /> as relevant to an individual’s situation. In terms of numbers, India’s has the highest level of IDP due to disasters in South Asia,<fnref n="434" /> which implies that these individuals may not have the required administrative documents to prove their citizenship, and thus will not be on the NRC list. They are therefore left to the mercy of administrative officials.

This situation seeds into and is in fact based on legal violence. According to Abrego and Lakhani, legal violence is “the internalisation of social inequalities by individuals who, through repeated exposure to various forms of inequality, become inured to them”. More importantly,

<footnote n="429">⁴²⁹ Kanchan Gupta, ‘Beyond the Poll Rhetoric of BJP’s Contentious Citizenship Amendment Bill’ (Observer Research Foundation 2019) 89.</footnote>

<footnote n="430">⁴³⁰ Assam has the highest number of IDPs in the world linked to conflict with 300000 individuals, mainly Adivasis – tribes of the Indian continent – in 85 camps. ‘Assam: The Largest Conflict Induced IDPs of the World in 2014 Reel under a Massive Humanitarian Crisis’ (Asian Centre for Human Rights 2015) 1.</footnote>

<footnote n="431">⁴³¹ Certain voice in Assam argue that administrative documents are not enough, and a scientific approach should be followed such as DNA profiling. Interview with Barua (n 411).</footnote>

<footnote n="432">⁴³² In September 2012, due to climate change, approximately 1.4 million people near the Brahmaputra River were forced into involuntary displacement. From 2010 to 2015, 880 villages from 18 of the 27 districts of Assam were lost. 36.981 families were rendered homeless due to adverse impacts of environmental degradation, in the form of floods, land erosion, and decreasing landmass. Instead of benefitting from planned relocation, or any state policy of rehabilitation, these villagers were forced to migrate or landed up in relief camps. Deprived of residency rights, social entitlements, and reduced to forced migration, climate refugees risk deprivation of nationality. As proof of citizenship individuals can submit pre-1971 land ownership documents. However, the Assamese government’s decision in 2017 to not tax land lost due to erosion and floods deprived these people of their tax receipts, which was the only official attestation of residency they possessed. Further, ownership documents of land lost due to erosion, have no value in the eyes of the administration. These groups have been consequently deprived of any recognized proof of belonging. They have found themselves assimilated in the ranks of illegal immigrants from Bangladesh, and thus placed in detention camps. Chandrani Sinha, ‘Climate Refugees Stripped of Citizenship in Assam’ (The Third Pole, 8 November 2019).</footnote>

<footnote n="433">⁴³³ “Shoot the Traitors”: Discrimination Against Muslims under India’s New Citizenship Policy’ (Human Rights Watch 2020).</footnote>

<footnote n="434">⁴³⁴ ‘India Data’ (IDMC).</footnote>
it “encourages people to take patterns of inequality for granted and, instead of attempting to dismantle the structural apparatuses that sustain them, accept responsibility for their position in the social hierarchy”.<fnref n="435" />

Consequently, poor people are the most affected by the NRC. This has disproportionately affected women<fnref n="436" /> and children directly.<fnref n="437" /> In light of the statistics given by the National Family Health Survey (NFHS) of 2015-2016 (graphic 4), out of half million people, 79.7% of children under five have been registered with the municipality (88.8 % in urban areas compared to 76.1 % in rural areas).<fnref n="438" /> In the NFHS of 2019-2021 only 89.1% of children under five registered with the civil authority, 93.3% were registered in urban areas in comparison to 87.5% in rural areas.<fnref n="439" />

In the 2015-2016 NFHS survey, only 62% of children under five possessed birth certificates – legal document under the Registration of Birth and Deaths Act, 1969. In contrast, the privileged groups in Indian society engage in the process of child registration.<fnref n="440" /> The social aspect of birth certificates resides in the bureaucratic delay and in some cases the corruption underlying its acquisition.<fnref n="441" />

<caption>Graphic 4: Children under 5 with a birth certificate – in percentage</caption>

<footnote n="435">⁴³⁵ Leisy J Abrego and Sarah M Lakhani, ‘Incomplete Inclusion: Legal Violence and Immigrants in Liminal Legal Statuses’ (2015) 37 Law & Policy 265, 267–268.</footnote>

<footnote n="436">⁴³⁶ Nilanjana Bhowmick, ‘India’s New Laws Hurt Women Most of All’ (*Foreign Policy*, 4 February 2020); Sidharth Yadav, ‘“Poor, Women Will Bear Brunt of CAA, NRC”’ *The Hindu* (3 January 2020).</footnote>

<footnote n="437">⁴³⁷ ‘Communication Letter: Mandates of the Working Group on Arbitrary Detention; the Special Rapporteur on Freedom of Religion or Belief; the Special Rapporteur on Minority Issues and the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance’ (Special Rapporteur 2018) OL IND 29/2018 pt 1(a). Interestingly, the Indian government has not replied to this communication letter. ‘Communication Letter: Mandates of the Working Group on Arbitrary Detention; the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; the Special Rapporteur on Minority Issues; the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance and the Special Rapporteur on Freedom of Religion or Belief’ (Special Rapporteur 2019) OL IND 11/2019.</footnote>

<footnote n="438">⁴³⁸ ‘NFHS: 2015 - 2016’ (Government of India, Ministry of Health and Family Welfare 2017) NFHS-4 40.</footnote>

<footnote n="439">⁴³⁹ ‘NFHS: 2019 - 2021’ (Government of India, Ministry of Health & Family Welfare) 3.</footnote>

<footnote n="440">⁴⁴⁰ ‘NFHS: 2015 - 2016’ (n 448) 39.</footnote>

<footnote n="441">⁴⁴¹ Interview with Hemadri (n 420).</footnote>
<figure><img src="image_7.png" /></figure>

Source: National Family Health Survey: 2015-2016' (Government of India, Ministry of Health and Family Welfare 2017) NFHS-4 40 •

Birth registration and birth certification are essential pillars of the right to nationality. While the right to nationality is a universal right,<fnref n="442" /> its protection is still closely linked to individual economical wealth (graphic 5). While the absence of a birth registration does not automatically entail statelessness, it may increase the risk of deprivation of nationality. An open letter by retired high government administrative officers published in 2020 in a daily online journal in English pointed out these aspects:

> Worrying reports are already coming in of people in different parts of India rushing in panic to obtain the necessary birth documents. The problem is magnified in a country where the **maintenance of birth records is poor, coupled with highly inefficient birth registration systems**. Errors of inclusion and exclusion have been a feature of all large-scale surveys in India.<fnref n="443" />

<figure><img src="image_8.png" /><figcaption>Graphic 5: Children under 5 who have a birth certificate according to their parent's wealth</figcaption></figure>

Source: National Family Health Survey: 2015-2016' (Government of India, Ministry of Health and Family Welfare 2017) NFHS-4 39 •

According to social activist, Ravi Hemadri, in a small survey made in Bongaigaon, on 1080 children, 70% of the children between 6 and 18 years old did not have a birth certificate. Even if parents are part of the NRC, there is a risk of statelessness for these children. On the contrary,

<footnote n="442">⁴⁴² Article 15 UDHR; Article 24§3 ICCPR; Article 7 CRC; Article 9 CERDW; Article 18§1-a Convention on the Rights of Persons with Disabilities; Article 5-d-iii ICERD; Article 29 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 2003.</footnote>

<footnote n="443">⁴⁴³ ‘India Does Not Need CAA-NPR-NRC, Say 106 Former Civil Servants in Open Letter’ *The Wire* (10 January 2020).</footnote>
children between 0 and 6 years old had certificates, when parents became aware of their
importance, after the NRC operation.<fnref n="444" /> Furthermore, while children are accounted by the
system, only birth certificates are accepted as a legal document.<fnref n="445" /> However, FT will not accept
it as proof, if delivered three months after birth.<fnref n="446" />

The impact of statelessness on children revolves around accessing rights and services (social security, healthcare, education), but more importantly, it exposes them to risks of exploitation (child marriage,<fnref n="447" /> sexual and human trafficking, forced labour).<fnref n="448" />

Religious affiliation also plays a role, as Muslims are least likely to undertake the process of child registration and consequently, are even less likely to have birth certificates (graphic 6).<fnref n="449" />

Graphic 6: Share of children under 5 who have a birth certificate according to their religion
– in percentage

<footnote n="444">⁴⁴⁴ Interview with Hemadri (n 420).</footnote>

<footnote n="445">⁴⁴⁵ ibid.</footnote>

<footnote n="446">⁴⁴⁶ Ravi Hemadri (Exploring the right to nationality in the context of India, 6 February 2021).</footnote>

<footnote n="447">⁴⁴⁷ In cases of child marriage and physical and verbal abuses, children are scared to lodge a complaint against their husband due to their parents statelessness. Furthermore, numbers of child marriage have increased because of NRC or fear of FT rulings. Interview with Azad (n 427).</footnote>

<footnote n="448">⁴⁴⁸ Alison Huyghe, ‘Why Europe Needs to Work with Other Regions to Find Creative Solutions to Birth Registration and Documentation of Children Born in Conflict Zones’ (European Network on Statelessness, 4 November 2021).</footnote>

<footnote n="449">⁴⁴⁹ ‘NFHS: 2015 - 2016’ (n 448).</footnote>
<figure><img src="image_9.png" /></figure>

Source: National Family Health Survey: 2015-2016' (Government of India, Ministry of Health and Family Welfare 2017) NFHS-4.

As far as women are concerned, they form part of the marginalised and oppressed groups, who often face difficulty in proving their citizenship under the NRC, as documents required deal with land, lineage, education or other administrative evidence.<fnref n="450" /> Many women are entirely excluded from administrative registrations, and thus have no documentation to prove their Indian citizenship. NRC seems to have highlighted such discrimination faced by women. This had already been pointed out to international institutions,<fnref n="451" /> or by the CEDAW which drew attention to the bureaucratic obstacles faced by women, preventing them from registering births, and obtaining birth certificates for their children.<fnref n="452" />

This lack of access to administrative documents on grounds of social position increased the discriminatory and arbitrary abuses of NRC by authorities.

<footnote n="450">⁴⁵⁰ ‘WSS Fact Finding On The Updating Of The NRC In Assam’ (WSS, 28 November 2019).</footnote>

<footnote n="451">⁴⁵¹ ‘Report of the Office of the United Nations High Commissioner for Human Rights: Compilation on India’ (Human Rights Council 2017) A/HRC/WG.6/27/IND/2.</footnote>

<footnote n="452">⁴⁵² ‘Concluding Observations on the Combined Fourth and Fifth Periodic Reports of India’ (CEDAW 2014) CEDAW/C/IND/CO/4-5 34.</footnote>
### 2.1.4. International Human Rights Law violations

The Central Government is considered by its opponents, (political parties including the Congress, state parties like the Trinamool Congress or the Communist Party in Kerala, but also a large body of public intellectuals, civil groups and NGO, lawyers, and of course representative bodies of the Muslim community), to have used the NRC legislation as a witch hunt against Muslims and consequently, held to violate IHRL via the non-protection of minorities rights.<fnref n="453" />

Through the deprivation of individual citizenship in an arbitrary and discriminate manner, the BJP government is accused of having violated its positive obligation (to ensure the respect of human rights) and even its negative obligation (to abstain, that is, to refrain from committing an unlawful act). It is held to have violated national laws, and thus breached international human rights principles. Such violations are seen as mirrored in the errors found in NRC formulas, highlighting prejudice against individuals from the Muslim community, thus further eroding the fundamental principle of equality<fnref n="454" /> that forms an essential feature of democracy.<fnref n="455" /> An open letter from civil servants in January 2020 pointed out these dangers:

> We are apprehensive that the vast powers to include or exclude a person from the Local Register of Indian Citizens that is going to be vested in the bureaucracy at a fairly junior level has the scope to be employed in an **arbitrary and discriminatory manner**, subject to **local pressures and to meet specific political objectives**, not to mention the unbridled scope for **large-scale corruption**.<fnref n="456" />

The violation of the State's negative obligation arises from its violation of the right to non-discrimination because of its deprivation of citizenship on the grounds of ethnicity and religion, and the arbitrary deprivation of citizenship. Arbitrary procedures were based on systematic discrimination in the reading of NRC applications in Assam leading to a segregation between

<footnote n="453">⁴⁵³ Angshuman Choudhury, 'Oppose the NRC, but Not Just for the Bureaucratic Incompetence Accompanying It' *The Wire*; Saha, *No Land's People* (n 16); 'Assam's Politics and the NRC' (2015) 55 EPW 7; Rajat Sethi and Angshuman Choudhury, 'Citizenship Determination Processes in Assam: The National Register of Citizens (NRC) and Beyond' (Institute of Peace and Conflict Studies 2018); 'Civil Society Groups Hold "People's Tribunal" on NRC' *The Hindu* (New Delhi, 8 September 2019); 'Left Parties Compelled to Protest against CAA, NRC, NPR: CPI' *Business Standard India* (27 December 2019); 'Left Parties Protest against CAA, NRC; Lash out at Govt' *The Tribune*.</footnote>

<footnote n="454">⁴⁵⁴ The difficulty in being equal before the law increases the risks of marginalisation for certain groups and the likelihood of abuses against them. Minority groups are the first to be affected.</footnote>

<footnote n="455">⁴⁵⁵ 'India: Assam's Citizen Identification Can Exclude 4 Million People' (*Human Rights Watch*, 31 July 2018).</footnote>

<footnote n="456">⁴⁵⁶ 'India Does Not Need CAA-NPR-NRC, Say 106 Former Civil Servants in Open Letter' (n 453).</footnote>
original Assamese and non-original residents. This separation was achieved by the application
of different criteria by NRC authorities. The SC's refusal to define original inhabitants or to
provide a specific procedure to identify them<sup>457</sup> led NRC bureaucracy to arbitrarily reject
documents from individuals considered as non-original residents.<sup>458</sup> For NRC officers, the
difference between these two categories was made on the assumption that "original" were those
who were Assamese speaking, while "non-original" were those of Bengali and Nepali descent.
For individuals considered original residents, certificates were automatically accepted. On the
contrary, for the 2.25 million deemed non-original, a two-step verification process to check the
certificate was followed.<sup>459</sup> The impact of this arbitrary and discriminatory policy led some of
the family members to be excluded from the NRC list, despite the entire family being on the
NRC list.

Equally these violations led the State to violate its positive obligations, as it did not
establish adequate measures to respect IHRL and did not investigate the violations, which led
discriminatory and arbitrary mass deprivation of nationality. In addition, the only appeal
instituted by the States was through FT, which is a questionable procedure.

2.1.5. Conclusion

Assam's complex experience with preparing its NRC, first mooted in 1951 and finalized
in 2019, offers enough examples of violations of human rights issues in separating "aliens"
from citizens. Among these difficulties are poor and inadequate legacy documentation in a
country where record-keeping is uneven and poor. Furthermore, the NRC's arbitrariness and
unpredictability linked to the lack of due process and the violation of the rule of law makes the
entire operation dangerous for minorities. State policy and bureaucratic practices of local
authorities involve delay in treating documents, harassing individuals or by demanding more
documents than necessary. They have resulted in depriving individuals of citizenship, violated

<footnote n="457">457 [2017] SC of India WP (C) No. 1020 of 2017.</footnote>

<footnote n="458">⁴⁵⁸ ‘Contested Citizenship in Assam: Public Hearing on Constitutional Processes and the Human Cost - Background Note’ (n 314).</footnote>

<footnote n="459">⁴⁵⁹ [2017] SC of India Special Leave Petititon No 13256/2017.</footnote>
individuals core human rights through discriminatory policies,<fnref n="460" /> involved arbitrary decisions,<fnref n="461" /> and non-protection of minorities rights.<fnref n="462" />

In the case of drawing up a NRC in Assam, inadequate safeguards have been instituted to prevent statelessness. Emphasis is on the technical aspects of proving belonging and residence, while the human rights dimension has been completely ignored. Hence, the large number of human stories of distress and anguish, helplessness and despair that are reported since the operation began. The belie the principles of international law that underlines the importance including provisions to prevent rendering persons stateless.

Paradoxically, the BJP government was equally discontented with this updated NRC as the list stripped a lot of Bengali Hindus – a strong voter base for that party – from the list. While the Assamese-speaking people felt betrayed by the BJP, which had vowed to detect and deport illegal immigrants, Muslims considered the law discriminatory, and Bengali-speaking Hindus too found they had been left out of the NRC list. The current Assamese government and the All Assam Students’ Union (AASU) has asked for the review of the NRC<fnref n="463" /> with the aim of increasing numbers of exclusions. In fact, for the AASU, the number of illegal migrants is more than 1.9 million. The organisation, known for its anti-foreigner’s movement in the state, backed complaints against the inclusion of individuals in the NRC. In Barpeta district, located in Lower Assam, with 70.74% Muslims, mostly of Bengal origin, more than 70.000 complaints were filed mostly on the last day.<fnref n="464" /> The local administration suspects the involvement of the AASU, a hypothesis confirmed by AASU advisor Samujjal Bhattacharya.

<footnote n="460">⁴⁶⁰ Article 2 and 4§1 UDHR; Article 2§1 ICCPR; Article 2§2 ICESCR; Article 2§1 CRC; Article 3 Declaration on Minorities.</footnote>

<footnote n="461">⁴⁶¹ Article 15 UDHR.</footnote>

<footnote n="462">⁴⁶² Article 27 ICCPR; Article 30 CRC; Declaration on Minorities.</footnote>

<footnote n="463">⁴⁶³ “In a meeting with AASU attended by my esteemed colleagues, we discussed a host of critical issues. The implementation framework would also include updating of NRC [...].”, Himanta Biswa Sarma, ‘In a Meeting with AASU’ (@himantabiswa, Twitter, 7 September 2021).</footnote>

<footnote n="464">⁴⁶⁴ ‘NRC Objections See a Drastic Spike at Eleventh Hour, Thanks to AASU’ *The Hindustan Times* (1 January 2019).</footnote>
In May 2021, Assam Chief Minister, Himanta Biswa Sarma, maintained the BJP government's intention to re-verify the NRC at a 20% level, in districts sharing a border with Bangladesh and 10% in other districts.<fnref n="465" /> The method is commonly used by a number of States, including France, whose demographic statistical services have recourse to the method of sampling during a population census. But in the prevailing context of Assam and the stakes involved, the verification could be politically motivated.

## 2.2. The political project of the Citizenship Amendment Act

### 2.2.1. Ideological shifts from Nehru to today

The Indian Citizenship Act, 1955 passed by the Congress party under Jawaharlal Nehru provided two channels for foreigners to acquire Indian citizenship: (i) citizenship by registration, where the government may grant Indian citizenship on application under Section 5(1)(a) of the Act; (ii) citizenship through naturalization after 12 years of residence in India.

In 1986, the Act underwent a first revision, privileging the *jus sanguinis* principle. Further amendments in 1992, 2003, 2005 and 2015, discussed above, were made in a background of Hindutva and economic growth.

The BJP spokesman, Sudhanshu Trivedi, declared that the current government prioritised the 2019 amendment:

> We have to distinguish between the infiltrators and genuine persecuted refugees. This is the right time for India to assert its security concerns, because we are living with neighbours who are the biggest security threats in the entire world.⁴⁶⁶

This statement recalls the CAD and the clashes between the concept of refugees and the right to citizenship. But equally, it shows a continuity in the use of a security threat as a main argument to violate fundamental human rights. The continued displacement of foreigners from neighbouring countries to India has been presented as the logical consequence of tensions and conflicts in the South-Asian region. This approach was advanced in the 1980s by Jaswant Singh, foreign minister from 1998 to 2002 in the first BJP government, but a moderate voice

<footnote n="465">⁴⁶⁵ Rokibuz Zaman, 'Assam NRC Coordinator Seeks Timely Re-Verification of Draft' *The Times Of India* (13 May 2021).</footnote>

<footnote>08/02/2024 09:16:00⁴⁶⁶ Sam Gringlas, 'India Passes Controversial Citizenship Bill That Would Exclude Muslims' *NPR* (11 December 2019).</footnote>
of Hindu nationalism.<fnref n="467" /> More radical Hindu nationalists adhere to a hard version of this logic. They see sinister plots aimed at turning Assam or North-East India into a Muslim majority region<fnref n="468" /> like Kashmir.

This background explains the latest revision, mainly the Citizenship (Amendment) Bill (CAB). In 2016, the central government, headed by Narendra Modi, introduced the CAB in the Lok Sabha, adopted as the CAA, 2019. The Bill's main purpose was to redefine the term "illegal immigrant" found in Section 2(1)(b) of the Citizenship Act, 1955, principally to be able to provide shelter to religious minorities persecuted in countries such as Pakistan, Afghanistan and Bangladesh, which have a Muslim majority:

> Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder **shall not be treated as illegal migrant for the purposes of this Act**.<fnref n="469" />

Accordingly, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from these three countries are no longer to be treated as “illegal immigrants”. The Act makes these six minorities, fleeing persecution from three Muslim-majority countries (Bangladesh, Pakistan and Afghanistan) eligible for Indian citizenship on the condition that they had entered India by 31 December 2014, and had suffered “religious persecution or fear of religious persecution” in their country of origin.<fnref n="470" /> For these communities, acquiring citizenship through the process of naturalisation was reduced from eleven years to six. Under the CAA, the time limit of six was reduced to five years. The proposed law also relaxes procedures for Hindu refugees: it reduces the registration fees from Rs. 3000 to Rs. 100, and delegates authority from the Union government to district

<footnote n="467">⁴⁶⁷ Singh, 'Assam's Crisis of Citizenship: An Examination of Political Errors' (n 294).</footnote>

<footnote n="468">⁴⁶⁸ Jagdamba Mall, 'Invasion of North-East' *Organiser* (19 September 2004); Sanjib Baruah, 'Postfrontier Blues: Toward a New Policy Framework for Northeast India' (2007) 33 Policy Studies 1, 42–47.</footnote>

<footnote n="469">⁴⁶⁹ Section 2 The Citizenship (Amendment) Act, 2019 (No 47 of 2019). [emphasis added]</footnote>

<footnote n="470">⁴⁷⁰ Helen Regan, Swati Gupta and Omar Khan, 'India Passes Controversial Citizenship Bill That Excludes Muslims' (*CNN*).</footnote>
magistrates for speedy processing of applications. On the contrary, Muslims from these countries, despite facing persecution cannot receive the same treatment.

Such a difference between communities from these three countries<fnref n="471" /> is also found in the Passport (Entry Into India) Amendments Rules, 2015 and Article 3A of the Foreigners (Amendment) Order, 2015. These amendments allow non-Muslims to stay in India if they seek shelter due to religious persecution or fear it, and enter the country with valid documents or papers that lapsed before 31 December 2014.<fnref n="472" /> In practice, Courts have often not demanded proof of religious persecution. For instance, in *Ranjit Kumar Mazumdar v. The State of West Bengal* (2016), the Court ruled that the Appellant accused of rape, and in possession of a fake birth certificate and ration card was protected from prosecution under the Foreigners (Amendment) Order, 2006.<fnref n="473" /> In another case, the High Court of Kerala ruled to grant bail to the petitioner as she was living in India since 2002, and was a Christian from Bangladesh. Despite an accusation of having false identity papers, she was released.<fnref n="474" /> The Allahabad High Court followed the Kerala High Court ruling, and in 2020, granted bail to a member of a minority group from Bangladesh accused of holding false Indian identity papers.<fnref n="475" /> In both cases, the High Courts refused to use the term “illegal immigrant”. These cases highlight the different degrees of treatment for “outsiders” within India. Although in Assam, a political agenda pursues arrests and detentions, in other states practices and rulings differ and produce what appears to be a less severe system of justice.

The CAA, 2019 differs from the 2015 notifications. Firstly, it restrains the definition of “illegal immigrant”. Secondly, it broadens the eligibility criteria for individuals from specific communities who can now apply for citizenship by registration (Section 5⁴⁷⁶) and naturalisation (Section 6). The Amendment removed the restriction on the category of exempted individuals.

<footnote n="471">⁴⁷¹ On 18 July 2016, Afghanistan was added.</footnote>

<footnote n="472">⁴⁷² Article 2 Passport (Entry into India) Amendment Rules, 2015.</footnote>

<footnote n="473">⁴⁷³ *Ranjit Kumar Mazumder v The State of West Bengal* [2016] Calcutta High Court C.R.M. No. 10076 of 2015 [9].</footnote>

<footnote n="474">⁴⁷⁴ *Smt Archona Purnima Pramanik v State of Karnataka* [2020] Karnataka High Court Criminal Petition No. 279 of 2020.</footnote>

<footnote n="475">⁴⁷⁵ *Anil Kumar *@* Anantnag v *State of UP* [2020] Allahabad High Court Criminal Misc. Bail Application No.-36509 of 2020.</footnote>

<footnote n="476">⁴⁷⁶ Section 5(1) only concerns individuals of Indian origin. 'Form IC-5(1)(A)' (*Foreigners Division Ministry of Home Affairs Government of India*).</footnote>
Additionally, on 28 May 2021, an order issued by the Ministry of Home Affairs under Section 16 of the Citizenship Act, 1955, introduced a specific procedure for these two sections (5 and 6). It concerns the same minority communities and countries mentioned in the CAA. With this mediation, the Indian government gave collectors or the Secretary of the Home Department of 13 districts in five states<fnref n="477" /> with a high migrant population, the power to grant citizenship to these groups from the three countries. This simple delegation of powers ends the three-level procedure that went through the Collector, the State Government/Union Territory administration, and the Central Government, who made the final decision to grant citizenship. By ending this procedure described in rules 11 to 15 of the Citizenship Rules, 2009, the Home Ministry not only eliminates an independent scrutiny procedure, but in addition, shortens and diminishes the process for registration and naturalisation. The Collector verifies the application, and grants citizenship if satisfied. Consequently, not only do the state Government or the Central Government not conduct inquiries into the suitability of the application, but this also leaves a greater flexibility for the Collector.

So, while these three level procedures still function for Muslim applicants who have experienced persecution, non-Muslims benefit from a quicker and easier procedure. These groups are exempted from prosecution as “illegal migrants” and enjoy a fast track to citizenship.

Clear difference of treatment can be perceived with the 2021 Order. Under Section 6(1), members of Hindu and Sikh communities from Afghanistan and Pakistan do not need to provide details of a valid passport as it is optional.<fnref n="478" /> However, Muslims are not entitled to this exception. It benefits only minority groups who arrived with valid documents before 31 December 2014, or even subsequently, whether or not they are affected by persecutions.

In response to this modification, the Indian Union Muslim League (IUML) challenged the notification in an Interlocutory Application through a writ petition (WP) under Article 32 of the Constitution.<fnref n="479" /> It argued that through this notification the Union Government is trying

<footnote n="477">⁴⁷⁷ Gujarat, Rajasthan, Chhattisgarh, Haryana, Punjab.</footnote>

<footnote n="478">⁴⁷⁸ ‘Form IC-6(1)’ (Foreigners Division Ministry of Home Affairs Government of India).</footnote>

<footnote n="479">⁴⁷⁹ A WP can be filed under Article 226 of the Constitution in the High Court and under Article 32 of the Constitution in the SC. The Indian constitution allows five types of WPs: *habea corpus*, mandamus, prohibition, certiorari and quo warranto. *Indian Union Muslim League v Union of India* [2021] SC of India I.A. No. of 2021 In WP (C) No 1470 of 2019.</footnote>
to implement the CAA 2019, even though the CAA rules were still awaited. On 14 June 2021, the Union Home Ministry filed an affidavit<fnref n="480" /> in the SC, arguing that this notification was not related to the CAA as it only considers individuals in possession of valid documents (e.g., passport and visa) and thus not illegal immigrants,<fnref n="481" /> and that it delegates power for two classes of applicants and thus does not deprive any other applicant of the right to apply for citizenship.<fnref n="482" />

### 2.2.2. Challenges and controversies

Both the CAB and the CAA can be viewed as the most controversial citizenship laws. The 2016 CAB needed approval of both Parliament houses. It faced obstacles in the Rajya Sabha where it was submitted two days after the Bill was passed by the Lok Sabha. While Congress and IUML opposition was certain, for the Act pointedly excluded any mention of Muslims as beneficiaries of this proposed law,<fnref n="483" /> and was therefore regarded by both as unconstitutional and anti-secular, other parties like the Janata Dal (United), and the critics of the Shiv Sena could also vote against it.<fnref n="484" /> Human rights activist Harsh Mander analysed the Bill as an attack on the secular foundations of the country, as outlined in the Constitution. In his opinion the CAA is,

> "without exaggeration, probably the most dangerous piece of legislation that we've had because it amounts to truly destroying the very character of the Indian state and the constitution".<fnref n="485" />

It was finally approved with 125 votes in favour and 99 against.<fnref n="486" />

<footnote n="480">⁴⁸⁰ Affidavits are confidential documents.</footnote>

<footnote n="481">⁴⁸¹ Ashish Sinha, 'Home Ministry's Notification on Citizenship Unrelated to CAA, Centre Tells SC' (*The Daily Guardian*, 14 June 2021).</footnote>

<footnote n="482">⁴⁸² 'CAA Revisited: How the May 2021 Order of the MHA Furthers a Discriminatory Citizenship Regime' (*Parichay - The Blog*, 6 August 2021); 'CAA: Writ Petition Summary (Indian Union Muslim League)' (*Supreme Court Observer*).</footnote>

<footnote n="483">⁴⁸³ Kunhalikutty P.K, Ray Sougata 'Government Bills - Introduced' 120;123.</footnote>

<footnote n="484">⁴⁸⁴ 'Controversial Citizenship Amendment Bill Faces Crucial Rajya Sabha Test Today' *India Today* (11 December 2019).</footnote>

<footnote n="485">⁴⁸⁵ Helen Regan, Swati Gupta and Omar Khan, 'India Passes Controversial Citizenship Bill That Exclude Muslims' (n 480).</footnote>

<footnote n="486">⁴⁸⁶ 'Government Bills - Introduced' (n 493).</footnote>
A strong argument made against the CAB was that it violates Article 14 of the Constitution, which guarantees the key right to equality to all persons.<fnref n="487" /> For the opposition, the diminution of required residency in India from 11 to 6 years for certain religious groups, legally designated members of the Muslim community as second-class citizens, and provided a preferential treatment to other groups.<fnref n="488" /> According to Intelligence Bureau records, there will be over 30,000 immediate beneficiaries of the bill: 25,447 Hindus, 5,807 Sikhs, 55 Christians, 2 Buddhists and 2 Parsis.<fnref n="489" /> Despite this strong complaint, Amit Shah, repeatedly argued in 2020, even after the New Delhi riots and protests in Assam, that existing legislations already establishes a difference between religious groups, yet it is not considered discriminatory or a violation of the right to equality. In the northeast states, especially in Assam, the Bill revived all the old fears about demographic changes following immigration: protestors maintain that the CAB's implementation, and hence the regularisation of illegal Bengali Hindu migrants from Bangladesh would threaten the state's cultural and linguistic identity.<fnref n="490" />

The CAA led to widespread protests, clashes, riots, public debates and splits in political parties. Public demonstrations were held in nearly all the states of India, from Maharashtra in the west to Bengal in the east, to Kerala in the south. Protests in New Delhi and in Assam since December 2019, followed by riots in February 2020, saw human rights violation by the police and a proliferation of hate speech discourses by politicians.<fnref n="491" /> Marked by police passivity in situations of violence and even intervention in favour of the rioters,<fnref n="492" /> they questioned the role of both the police and the judiciary in a democracy. Judges dealing with Delhi riots' cases were

<footnote n="487">⁴⁸⁷ Sougata Ray ibid 105.</footnote>

<footnote n="488">⁴⁸⁸ ‘Citizenship (Amendment) Act 2019: What Is It and Why Is It Seen as a Problem’ *The Economic Times* (31 December 2019).</footnote>

<footnote n="489">⁴⁸⁹ Abhishek Saha, ‘Explained: Why Assam, Northeast Are Angry’ *The Indian Express* (20 January 2019).</footnote>

<footnote n="490">⁴⁹⁰ ‘Citizenship (Amendment) Act 2019: What Is It and Why Is It Seen as a Problem’ (n 498).</footnote>

<footnote n="491">⁴⁹¹ ‘Communication Letter’ (Special Rapporteur 2020) AL IND 15/2020; Kapil Mishra (@KapilMishra_IND, Twitter, 23 January 2020); Kapil Mishra (@KapilMishra_IND, Twitter, 23 January 2020); ‘Wages of Hate Speech’ (*Telangana Today English*, 26 February 2020); ‘CAA Violence: HC Makes Centre Party in PIL for FIRs over Hate Speech by 3 BJP Leaders’ *The Tribune*.</footnote>

<footnote n="492">⁴⁹² Jeffrey Gettleman and others, ‘How Delhi’s Police Turned Against Muslims’ *The New York Times* (12 March 2020); ‘Video Verification: Delhi Cops Beating Injured Men, Forcing Them to Sing National Anthem’ (*Alt News*, 25 February 2020).</footnote>
transferred.<fnref n="493" /> Judge Vinod Yadav, who argued that the police investigation was made in a “farcical and casual manner” was transferred as a Special CBI Judge.<fnref n="494" /> Finally, the Indian government intervened through President Ram Nath Kovind to ensure the appointment of Special Public Prosecutors chosen by the Delhi Police, notably the controversial pro-BJP Solicitor General, Tushar Mehta.<fnref n="495" />

The BJP government argued that Muslims can turn to 26 Muslim majority countries to seek shelter, whilst Hindus have only one country: India.<fnref n="496" /> For the BJP, the CAA therefore protects religious minorities who flee to India to avoid persecution, by allowing them to become citizens. Following this argument, Amit Shah declared:

> It is well known that those minorities who chose to make Pakistan, Bangladesh and Afghanistan their home had to constantly live in the fear of extinction. This amended legislation by Modi government will allow India to extend them dignity and an opportunity to rebuild their lives.<fnref n="497" />

An unstated consequence of the CAA would be to aid Bengali-speaking Hindus, Buddhists and Christians who migrated from Bangladesh into India and have been living in India as “illegal immigrants”. Consequently, the CAA only applies to individuals facing persecution on religious grounds, and to applicants who entered India before 31 December 2014.<fnref n="498" /> It clearly affirms a citizenship pathway based on religion.<fnref n="499" /> It also does not include migrants fleeing persecution from non-Muslim countries to India: Rohingya refugees from Myanmar, Hindu refugees from Sri Lanka, or Buddhist refugees from Tibet, China. It is India's first law on citizenship that openly proclaims an ethno-nationalist approach to citizenship, defined by

<footnote n="493">⁴⁹³ Shaik Zakeer Hussain, 'Judge Who Ordered FIR Against BJP Leaders Transferred' (*The Cognate*, 12 March 2020).</footnote>

<footnote n="494">⁴⁹⁴ Nupur Thapliyal, ""Inefficient", "Poor Standard", 'Lackadaisical': Critical Observations Made By Now Transferred ASJ Vinod Yadav Against Delhi Police Probe In Riots Cases' *Livelaw.In* (7 October 2021).</footnote>

<footnote n="495">⁴⁹⁵ 'Plea against Appointment of SPPs in Delhi Riots Cases; HC Seeks Centre, AAP Govt. Stand' *The Hindu* (9 November 2020).</footnote>

<footnote n="496">⁴⁹⁶ Kanchan Gupta, 'Losing Citizenship Bill Battle Has Provoked BJP to Take Polarisation Agenda beyond Assam' *The Print* (7 May 2019).</footnote>

<footnote n="497">⁴⁹⁷ Amit Shah, 'It Is Well Known ...' (@AmitShah, Twitter, 9 December 2019).</footnote>

<footnote n="498">⁴⁹⁸ 'What Is Citizenship (Amendment) Bill 2019 and Whom Does It Impact - What Does the Citizenship Amendment Bill (CAB) Do?' *The Economic Times* (9 December 2019).</footnote>

<footnote n="499">⁴⁹⁹ Kunhalikutty P.K, Ray Sougata 'Government Bills - Introduced' (n 493) 336.</footnote>
religious affiliation and ethnic identity, and shifts from the secular principles of its Constitution.
It has been argued that:

> The bill uses the language of refuge and sanctuary but discriminates on religious grounds in violation of international law.<fnref n="500" />

Religious discrimination consists of treating a person or a group differently due to their particular religious beliefs, and to discourage this practice IHRL guarantees protection against it through the ICCPR,<fnref n="501" /> ICERD,<fnref n="502" /> ICESCR,<fnref n="503" /> UDHR<fnref n="504" />, Convention on the Rights of the Child (CRC)<fnref n="505" />, and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.<fnref n="506" /> Furthermore, resolution 2005/40 of the Commission on Human Rights recalls the danger of legal distinction based on faith, and urges States to eschew such practices.<fnref n="507" /> Even though the CAA is also in favour of people belonging to religious minorities other than Hindus such as Christians, Buddhists etc, the greatest percentage of people profiting from the amendment are Hindus.<fnref n="508" /> The 1992 Declaration on Minorities in its Article 4 had established that States must take the necessary measures to ensure that individuals belonging to minority groups may “exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law”. Apart from its repercussions on certain minorities, the CAA also affects women and girls’ citizenship rights, thus violating Article 9 of the CEDAW.

At the national level, the Constitution does guarantee equal fundamental rights (Article 14), and non-discrimination (Article 15) based on religion. Yet, according to the Parliamentary Joint

<footnote n="500">⁵⁰⁰ Meenakshi Ganguly, South Asia director at Human Rights Watch, in Helen Regan, Swati Gupta and Omar Khan, ‘India Passes Controversial Citizenship Bill That Exclude Muslims’ (n 480); ‘Communication Letter’ (Special Rapporteur 2019) OL IND 2/2019.</footnote>

<footnote n="501">⁵⁰¹ Articles 2§1, 5§1, 26 and 27 ICCPR.</footnote>

<footnote n="502">⁵⁰² Article 5 ICERD.</footnote>

<footnote n="503">⁵⁰³ Article 2§2 ICESCR.</footnote>

<footnote n="504">⁵⁰⁴ Articles 2, 6 and 7 UDHR.</footnote>

<footnote n="505">⁵⁰⁵ Article 30 CRC.</footnote>

<footnote n="506">⁵⁰⁶ Articles 2§1, 3, 4§1 and §2 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981.</footnote>

<footnote n="507">⁵⁰⁷ ‘Resolution 2005/40 on Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’ (Commission on Human Rights 2005) E/CN.4/RES/2005/40 para 4(g)-7-8-9–10.</footnote>

<footnote n="508">⁵⁰⁸ ‘Intelligence Bureau to Tap RAW to Verify Citizenship Claims’ *The Telegraph online* (8 January 2019).</footnote>
Committee examining the measure, the CAA violates these articles.<fnref n="509" /> On these grounds, around 143 petitions were filed in the Indian SC<fnref n="510" />, and a petition by the state of Kerala, arguing that the CAA violates the Constitution and secularism.<fnref n="511" /> They held that the religious criteria to access citizenship through naturalisation violated the principle of equality.<fnref n="512" /> Furthermore, using religion and religious persecution as a factor to access citizenship, and at the same time refusing to recognise it for other groups, violated the principles of secularism,<fnref n="513" /> and went against SC precedent. In *State of Karnataka v. Praveen Bhai Thogadia (Dr.)* (2004), the SC argued that individual religion, faith or belief should not be considered as decisive factors to rule on individual citizens:

> Welfare of the people is the ultimate goal of all laws, and State action and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of the society as a whole and not of any individual or particular groups carrying any brand names.<fnref n="514" />

In 2021, in *Madras Bar Association v. Union of India*, the SC went further, arguing that in the case of a legislation contradicting the Constitution's essential structure, the legislation could be struck down, thus giving it a final voice over the executive in the Indian system.<fnref n="515" /> However, for this system to work, the SC has to interfere and rule on the legislation, which it is still to do.

Further, compelling individuals to divulge their religion to the administration can be considered a violation of the right to privacy as held in *Justice K.S. Puttaswamy v. Union of India* (2018).<fnref n="516" /> But it can also be perceived as a violation of the unconstitutional condition doctrine.<fnref n="517" /> Under

<footnote n="509">⁵⁰⁹ ‘Report of the Joint Committee on the Citizenship (Amendment) Bill, 2016’ (Parliament of India, Lok Sabha 2019) 151.</footnote>

<footnote n="510">⁵¹⁰ ‘No Stay on CAA for Now; SC Gives Centre 4 Weeks to Respond’ *The Hindu - Business Line* (22 January 2020).</footnote>

<footnote n="511">⁵¹¹ Arvind Gunasekar, ‘Kerala Challenges Citizenship Act In Supreme Court, First State To Do So’ *NDTV* (14 January 2020).</footnote>

<footnote n="512">⁵¹² The HRC in its General Comment No. 19 noted that the rights protected by the ICCPR applies to the acquisition or loss of nationality. In 2004, the CERD argued that governments should “ensure that particular groups of non-citizens are not discriminated against, regarding access to citizenship or naturalization”. ‘General Comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses’ (HRC 1990) 19; ‘General Recommendation No. 30: Discrimination against Non-Citizens’ (n 145) 13.</footnote>

<footnote n="513">⁵¹³ *Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Anr* [1973] SC of India AIR 1973 SC 1461; *S R Bommai v Union of India* [1994] SC of India 1994 AIR 1918.</footnote>

<footnote n="514">⁵¹⁴ *State Of Karnataka And Anr v Dr Praveen Bhai Thogadia* [2004] SC of India (2004) 4 SCC 684.</footnote>

<footnote n="515">⁵¹⁵ *Madras Bar Association v Union of India* [2014] SC of India (2014) 10 SCC 1 [53].</footnote>

<footnote n="516">⁵¹⁶ *Justice KS Puttaswamy (Retd) v Union of India* [2018] SC of India (2017) 10 SCC 1.</footnote>

<footnote n="517">⁵¹⁷ Concerning the unconstitutional condition references are made in: *LIC of India v Consumer Education & Research* [1995] SC of India 1995 AIR 1811.</footnote>
this doctrine, government should not give benefit to individuals on the condition of their giving
up a constitutional right.<fnref n="518" /> In *Ahmedabad St Xavier's College v. State of Gujarat* (1974), the
Court defined this concept:

> means any stipulation imposed upon the grant of a governmental privilege which in
> effect requires the recipient of the privilege to relinquish some constitutional right.<fnref n="519" />

Beside religious discrimination, the CAA initiated debates on refugees. Its main purpose
is to provide protection through shelter to vulnerable and persecuted religious groups whose
basic rights are at risk. In fact, the CAA clashes with the tenets of international refugee law.
Although India is not a signatory to the 1951 Refugee Convention, granting refuge based on
humanitarian considerations is a form of customary international law. The CAA is seen to
contain fallacies on these grounds. First, it qualifies people from minority religions as migrants
when they might actually not be migrants but refugees. Migrant refers to the voluntary
movement of people. In contrast, a refugee makes an involuntary act of forced movement.
Moreover, refugees raise questions of human rights and safety. According to Amit Shah, "there
is a fundamental difference between a refugee and an infiltrator... this bill is for refugees".<fnref n="520" />
The underlying suggestion that excluding Muslims from the CAA, is because they are
infiltrators cannot be ignored. On the other hand, non-Muslims are treated as refugees, because
they are seen as victims, escaping from persecution in three Muslim-majority countries.

Providing shelter to individuals of a selected religion defeats not only the intention but also the
rationality of refugee policy. If the government intends to protect religiously persecuted people
in the neighbourhood, they should also, according to critics, consider the situation of Muslim
refugees, like the 36,000 Rohingya Muslims from Myanmar who fled to India in the wake of
the 2015 insurgency.<fnref n="521" /> The government argues that Muslims cannot be persecuted in Muslim-
dominated countries, and therefore all Muslim immigrants are excluded from the Act. Hence,

<footnote n="518">⁵¹⁸ Maurice Merrill, ‘Unconstitutional Conditions’ (1929) 77 Univ. Pa. Law Rev. 879; Kathleen M Sullivan, ‘Unconstitutional Conditions’ (1989) 102 Harv. Law Rev. 1413, 1415.</footnote>

<footnote n="519">⁵¹⁹ *Ahmedabad St Xavier's College v State of Gujarat* [1974] SC of India (1974) 1 SCC 717. In this case, the SC refers to the United States SC ruling: *Frost & Frost Trucking Co v Railroad Comm'n* [1926] SC of the US 271 U.S. 583 (1926).</footnote>

<footnote n="520">⁵²⁰ Deeptiman Tiwary and Avishek G Dastidar, ‘Lok Sabha Clears Citizenship Amendment Bill: Amit Shah Invokes “Partition on Basis of Religion” to Defend Bill’ *The Indian Express* (10 December 2019).</footnote>

<footnote n="521">⁵²¹ Lovish Garg, ‘If India Wants to Remain Secular, the New Citizenship Bill Isn’t the Way to Go’ *The Wire* (21 September 2016).</footnote>
members of the Ahmadiyya and Shia communities of Pakistan<fnref n="522" /> or the Hazaras from Afghanistan, despite being persistently targeted by extremists, will not be able to seek refuge in India.<fnref n="523" /> This, even though the Indian government has raised the persecution issue of Shia and Ahmadiyya communities in Pakistan in international forums.<fnref n="524" />

Exclusion of Muslims' as well as undocumented immigrants from Sri Lanka, Nepal or Myanmar, led critics to accuse the Indian government of being concerned only with the persecution of minorities if they occur in Muslim-majority countries, and manifest indifference to the persecution of minorities in non-Muslim majority countries.<fnref n="525" /> On the contrary, these flows are perceived by the government as a threat to the country, and it tries to force them out.<fnref n="526" /> On 4 January 2019, the UNHCR revealed that a detained Rohingya family was expelled to Myanmar by the Indian administration on grounds of illegal entry.<fnref n="527" /> For international law, this nationalist, discriminatory treatment contradicts the human rights perspective that governs the pathway to acquisition of nationality.

Most of the arguments advanced against the CAA apply equally to the May 2021 notification *mutatis mutandis*. The notification establishes a discrimination between individuals of Indian origin from Afghanistan, Pakistan or Bangladesh who belong to a specific minority, and Muslims of Indian origin from these countries. Consequently, Muslims of Indian origin do not benefit from this process of registration.

<footnote n="522">⁵²² Section 298 C Pakistan Penal Code 1860: criminalises the action of any person from the Ahmadiyya community to “directly or indirectly, poses himself as Muslim, ... or preaches or propagates his faith...” with a maximum punishment of three years.</footnote>

<footnote n="523">⁵²³ Apoorvanand, 'The New Citizenship Bill and the Hinduisation of India' *AlJazeera* (12 January 2019).</footnote>

<footnote n="524">⁵²⁴ Aryan Vimarsh, 'Second Right of Reply by India under Agenda Item 2 at the 41st Session of the Human Rights Council Delivered by Mr. Vimarsh Aryan' (*Permanent Mission of India in Geneva*, 25 June 2019).</footnote>

<footnote n="525">⁵²⁵ Ibid.</footnote>

<footnote n="526">⁵²⁶ Helen Regan, Swati Gupta and Omar Khan, 'India Passes Controversial Citizenship Bill That Exclude Muslims' (n 480).</footnote>

<footnote n="527">⁵²⁷ Kristy Siegfried, 'The Refugee Brief - 4 January 2019' (*The Refugee Brief*, 4 January 2019).</footnote>
Respecting the Constitution marks a shift from the “culture of authority” to the “culture of justification”. This distinction, made clear through the SC rulings<sup>528</sup> leads to the requirement that States’ action must be publicly justifiable<sup>529</sup>:

> It must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.<sup>530</sup>

The law shifts India's citizenship policy on *jus soli* toward the racially manifested *jus sanguine* principle.

### 2.2.3. Judicial actions before the Supreme Court

Deb Mukherjee, an Indian Foreign Service officer, petitioned against the CAA, 2019 by highlighting core and constitutional arguments.<sup>531</sup> Besides recalling the dictum “citizenship is a most precious right”,<sup>532</sup> the seven lawyers<sup>533</sup> argued that the CAA creates division amongst persecuted individuals,<sup>534</sup> refugees and asylum seekers within the Indian territory on grounds of their faith and nationality of origin,<sup>535</sup> and draws a distinction based on religion, between communities.

The Petitioners referred to the violation of Articles 14 and 21 of the Indian Constitution arguing: laws concerning citizenship have to be subjected to rigorous standards of judicial review; laws do not have to entrench and perpetuate existing disadvantage without any reasonable justification; they have to respect the doctrine of reasonable classification for a legitimate

<footnote n="528"><sup>528</sup> *Justice KS Puttaswamy (Retd) v Union of India* (n 526); *Kalpana Mehta v Union of India* [2018] SC of India (2018) 7 SCC 1; *Govt of Nct of Delhi v Union of India* [2018] SC of India (2018) 8 SCC 501.</footnote>

<footnote n="529"><sup>529</sup> *Petition* [2019] SC of India WP (C) No. ______ Of 2019 [YY].</footnote>

<footnote n="530"><sup>530</sup> Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 Afr. J. Hum. Rights 31, 32; David Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14 Afr. J. Hum. Rights 11, 11.</footnote>

<footnote n="531"><sup>531</sup> *Petition* (n 539).</footnote>

<footnote n="532"><sup>532</sup> *State of Arunachal Pradesh v Khudiram Chakma* [1993] SC of India 1993 SCR (3) 401.</footnote>

<footnote n="533"><sup>533</sup> Gautam Bhatia, Abhinav Sekhri, Jahnavi Sindhu, Shruti Narayan, Suhrith Parthasarathy, Bharat Gupta and Shadan Farasat.</footnote>

<footnote n="534"><sup>534</sup> *Petition* (n 539) 1.</footnote>

<footnote n="535"><sup>535</sup> ibid 3.</footnote>
purpose; they must not be arbitrary, and must respect Article 21 (right to life, personal liberty, and right to privacy). In contrast to other WP, the argumentation refers to national principles, IHRL, and global law.

To begin with, the right to citizenship is not being perceived as a fundamental right in the Constitution, even though the SC recalled its importance in *State of Arunachal Pradesh v. Khudiram Chakma* (1993), where it refers to the U.S. SC (*Kennedy v. Mendoza-Martinez*, 1963) dictum that “citizenship is a most precious right”.<fnref n="536" /> Yet “citizenship laws” must follow a rigorous standard of scrutiny: it is considered to be the right to have rights; deprivation of citizenship mostly affects minority groups; international conventions lay down the right against statelessness. Statelessness is recalled in the Petition through national (U.S and India)<fnref n="537" /> and international (ICJ)<fnref n="538" /> jurisprudences, and Article 15 of the UDHR. The ICJ case underlines that the right to nationality is part of customary law. The Indian SC recalled the binding aspect of customary international law principles.<fnref n="539" />

Second, violation of Article 14 (equality before the law)<fnref n="540" /> focuses on the prohibition of entrenchment or perpetuation of disadvantage, based on Indian jurisprudence evolution. It argues that violation occurs through three aspects: “if (a) taken in context and with a view to social realities, (b) its effect or impact is to (c) entrench or perpetuate disadvantages suffered by individuals or groups.” Based on these arguments, it recalls the *Navtej Johar* (2018), case decriminalising all consensual sex between adults, where the SC argued that “article 14 [...] reflects the quest for ensuring fair treatment of the individual in every aspect of human

<footnote n="536">⁵³⁶ *Kennedy v Mendoza-Martinez* [1963] SC of the US 372 U.S. 144, 159 [1963]; *State of Arunachal Pradesh v. Khudiram Chakma* (n 542).</footnote>

<footnote n="537">⁵³⁷ ‘Guidelines on Statelessness No. 1: The Definition of “Stateless Person” in Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons’ (United Nations High Commissioner for Refugees 2012) HCR/GS/12/01.</footnote>

<footnote n="538">⁵³⁸ For the Court, M. Nottebohm, a German and Liechtenstein national living in Guatemala, could not be protected by the State due to the nature and quality of his Liechtenstein nationality, as it was insufficient. Consequently, while the Court argued about the very essence of nationality, it looked at the application of the rights arising from nationality. In fact, M. Nottebohm’s subsequent conduct – he did not abandon his residence and business activities in Guatemala, nor was he incorporated in the politic body of Liechtenstein – led to the submission of the application of the right to protection. This case highlighted the importance of the relation between a national and the State as it offers diplomatic protection. This national right is also a State responsibility and its duty. Yet, the State may or may not exercise this right. *Liechtenstein v Guatemala* [1955] ICJ [1955] ICJ 1.</footnote>

<footnote n="539">⁵³⁹ *Vellore Citizens Welfare Forum v Union of India* [1996] SC of India (1996) 5 SCC 647; *The Chairman, Railway Board v Mrs Chandrima Das* [2000] SC of India AIR 2000 SC 98.</footnote>

<footnote n="540">⁵⁴⁰ *Petition* (n 539) para N.</footnote>
endeavour and in every facet of human existence”.<fnref n="541" /> The Petitioners, underline the effect of systemic discrimination on disadvantage group with *Joseph Shine v. Union of India* (2018) case:

> Justness postulates equality. In consonance with constitutional morality, substantive equality is ‘directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.’ To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realization of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals.<fnref n="542" />

Using two jurisprudences related to Article 14 underlines the evolution of India's jurisprudence. *Joseph Shine* pinpoints the different types and layers of discrimination faced by disadvantaged groups: individual, institutional and systemic. Petitioners argue that while the State is entitled to withdraw a 'privilege' it cannot follow such a policy in discriminatory ways or on arbitrary grounds.<fnref n="543" /> Equal protection of law varies according to the scale of people affected by State action. This was deemed unacceptable in *Justice (Retd.) K.S. Puttaswamy v. Union of India* (2018). For the SC, the Constitution does not apply to a few or minority of the people of India, but “We the people”.<fnref n="544" /> With these elements, the Petitioners target the Statement of Objects and Reasons, which justifies the different categories.<fnref n="545" /> Three core elements stand out: (i) the historical border between India and the three countries, and the migration flux; (ii) before Partition, different religious communities cohabited these areas – however Afghanistan was not part of the Union of India –; and (iii), the creation of non-secular States led to the persecution

<footnote n="541">⁵⁴¹ *Navtej Singh Johar v Union of India* [2018] SC of India (2018) 10 SCC 1 [26].</footnote>

<footnote n="542">⁵⁴² *Joseph Shine v Union of India* [2018] SC of India (2019) 3 SCC 39 [38]. [emphasis added]</footnote>

<footnote n="543">⁵⁴³ In *E.P. Royappa* (1973), the validity of state action was made subject to the test of arbitrariness: “Equality is a dynamic concept with many aspects and dimensions, and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art.14…” *E P Royappa v State of Tamil Nadu* [1973] SC of India 1974 AIR 555.</footnote>

<footnote n="544">⁵⁴⁴ *Justice KS Puttaswamy (Retd) v Union of India* (n 526) para 14.</footnote>

<footnote n="545">⁵⁴⁵ “It is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh [...] The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.” Statement of Objects and Reasons, The Citizenship (Amendment) Act, 2019 para 2.</footnote>