The Election Commission of India’s decision to ask for proof of citizenship from voters as part of a special intensive revision of the voter rolls in Bihar has once again shone a light on how difficult it is to prove citizenship in India.
As part of the exercise, individuals whose names are not on the 2003 voter list will need to prove that they are Indian citizens. According to India’s citizenship law, depending on the year in which one was born, this may require providing proof that one was born in India, as well as proof that one or both of one’s parents were born in India.
The citizenship proof requirement has been criticised by opposition parties in Bihar and the rest of India for its potential for voter exclusion.
Bihar is part of a trend. Citizenship has been a major theme of the past decade in Indian politics. An exercise in 2019 to update the National Register of Citizens in Assam required residents to prove citizenship. In that same year, the Bharatiya Janata Party’s manifesto included a promise to draw up a National Register of Citizens across the country.
This is concerning since proving citizenship can be an onerous task in India. There is no one single single document that proves Indian citizenship, for example. According to legal experts that Scroll spoke with, the Indian state’s failure to provide easy and universal access to foundational documents creates a precarious system where citizenship can be questioned at any time, turning a fundamental right into a burden, especially for the country’s most marginalised.
What the law says
Only foreign nationals who take up Indian citizenship are granted actual citizenship certificates. People actually born Indian do not have any such document.
Thus, if asked to prove her citizenship, an Indian who is a citizen by birth would have to produce a complex set of papers. For those born before 1987, proof of birth within India will be required. Those born after will need three sets of documents: proof of their birth in India, proof of their parent’s citizenship and proof of their relationship with their parent.
The commonly held idea that identity documents prove citizenship is not true in law. The Supreme Court and different High Courts have over the years held that documents such as Aadhaar card, voter identity card, permanent account card and a certificate issued by the Gram Panchayat Secretary, as well as ownership of a bank account or property are not evidence of citizenship.
Red tape labyrinth
This legal framework for proving citizenship would provide a challenge for most Indians.
The biggest obstacle is that India has a massive documentation deficit. “Prior to 1987, there aren’t very good birth records maintained, especially in rural India,” said Rupali Samuel, an advocate at the Supreme Court who works on citizenship issues. “Many births also happen at home. In a state like Bihar, you have a lot of remote village areas and adivasi communities where rural birth is not well documented.”
Darshana Mitra, an assistant professor of law at the National Law School of India University, Bangalore, pointed out that access to documents is often intertwined with class and privilege. “The availability of documents becomes a function of literacy rate,” said Mitra, who is also co-founder and director of Parichay, a collaborative legal aid clinic that works on citizenship deprivation and statelessness in Assam. “If you don’t go to school and then don’t go on to hold formal employment, you lose out on two levels of documents.”
Naming maze
Even when documents exist, they are often riddled with inconsistencies. “In India, culturally, we don’t name babies at birth,” Samuel noted. “The name can be given after a ritual later on. So a lot of birth certificates are blank or they may not have the names of one or both parents.”
This problem is compounded by the complexities of names in India. Latin spellings for Indian names are often not standardised, leading to wide variations. Furthermore, many Indian communities do not keep surnames. “Enumerators may unilaterally add suffixes like Kumar, Muhammad, Islam, Begum or Bai to give people two names,” Samuel said. This creates discrepancies across documents issued at different points in a person’s life, which could be used to cast doubts on their citizenship.
For those born after 1987, the challenge multiplies. “Even a birth certificate is not enough because then you need to prove your parent’s citizenship also,” said Samuel. “The minute you start linking it to the status of your parents, a question mark can be raised on anyone’s status along the line.”
This creates a cascading burden of every-changing documentary proof that disproportionately harms the most vulnerable. “We’re generally not good with documents,” said Shahrukh Alam, an advocate at the Supreme Court. “The state demands too many of them from people who don’t have them, who can’t get them made and who have no access to those kinds of resources.”
Hurting Indians
This has a real human cost explained Aashish Yadav, a PhD Candidate and research assistant at the Peter McMullin Centre on Statelessness at Melbourne Law School. “People who suffer are those who are poor, who are marginalised, who have documents but may not have the time or a day off to get a document updated and meet new requirements,” he said. He added that this was widely documented during the National Register of Citizens-preparation exercise in Assam.
Specific communities face unique hurdles. “Migrant workers whose children are born in other parts of the country may not have access to those records or even speak the local language in which the documents are issued,” said Samuel. “Transgender individuals, often ostracised by their families, may have documents with different names.”
Mitra pointed out, based on her experience working in Assam, the predicament of women from marginalised communities whose births were not registered, who did not enter formal education and did not inherit any property from their paternal families. “Such women have no connection with their parents in any documents,” she said.
The absence of any guidelines on what qualifies as definitive proof of citizenship puts immense discretion in the hands of low level bureaucrats, said Yadav. “There are no fixed goal posts,” he said. “By design, the demands of the officials will change from region to region, community to community and person to person, without following due process and upholding fundamental rights of persons.”
This ambiguity creates fertile ground for profiling. “Most likely, those who are Bengali Muslims will be looked at with suspicion,” warned Samuel. “When you are looking at them with suspicion, then any issue they have with the documents becomes a reason to question their citizenship status.”
Indeed, as Scroll has extensively reported, most of the alleged foreigners being pushed out in anti-immigrant drives in Assam and the rest of India are Bengali Muslims on suspicion of being Bangladeshis.
Rethinking citizenship
Given these deep-seated problems, is a single, definitive citizenship document the solution? Experts Scroll spoke with were sceptical. They argued that the problem isn’t administrative, but political.
Alam said that the experience with Aadhar and the yet-to-be-notified National Register of Citizens in Assam showed that the problem is not document-centric. “It’s about catching people out,” she said. “You yourself create a particular documentary threshold and a few years later, if you think that’s not enough of a net, you say, ‘Well, this is not enough, I want something else’.”
Yadav echoed this concern, pointing out that any such exercise, however well-intentioned, would inevitably lead to exclusion. “Even the most benevolent rollout of a citizenship document now would still lead to people being found not eligible,” he said. “This has been observed in many countries where such bureaucratic exercises have created statelessness.”
There is no data in the public domain, as Alam pointed out, to suggest that non-citizens are voting in large numbers. The push for documentation appears to be driven by a political project of exclusion rather than an administrative need for clarity, she said.
Experts suggested that instead of focusing on retrospective citizenship verification exercises, India needs to first invest in its social infrastructure.
Mitra argued that the state, which has failed to provide universal access to documentation, cannot then penalise citizens for not possessing it. “The state creates ‘illegal immigrants’ by refusing to recognise their citizenship,” she said. The solution, she suggested, lies in guaranteeing effective social services. “If the state can guarantee social services from birth, like 100% birth registration and school enrolment, everyone will have the necessary documents.”
