The debate on the recently introduced Citizenship Amendment Bill, 2016, has an older pedigree going as far back as the founding moments of citizenship in India.

While the Bill is now being considered by a Select Committee, if passed, it will be the sixth amendment to the Citizenship Act of India, 1955.

At the commencement of the Indian Republic, citizenship was woven into the narrative of the drawing of national borders and the affirmation of state sovereignty over the territorial boundaries of the nation state. Both required a simultaneous legal statement of who could be designated a member of the nation state.

The legal-constitutional frameworks of citizenship recognised as citizens those who resided within the national borders, or crossed them in ways that could be considered legitimate by the state.

Yet, the citizenship law did not capture all the contexts in which migration across borders took place, and certain forms of movement could be brought within the purview of law only by marking them out as exceptions.

One of the ways in which such cross-border movement was made legible by the state was to look at it as “displacement”, which was resolved through administrative measures.

The 2003 amendment

The proposed amendment is, however, also new in the sense that never before has religion been specifically identified in law as the ground for distinguishing between citizens and non-citizens.

Prominent among the proposed amendments in the citizenship act, is the elaboration of “illegal migrants” – a category that was first introduced in the Citizenship Act, 1955, through amendments in 1986 and 2003.

Indeed, the 2003 amendment is a signpost in legal elaboration of citizenship for having inserted the category of the overseas citizen of India. As the committee headed by LM Singhvi that recommended the change claimed, the category was ostensibly devised to address the need of the Indian diaspora – who had lost their Indian citizenship upon becoming citizens in their adopted countries – to sustain ties with their country of origin.

The 2003 amendment, while recognising descent (jus sanguini) for the purpose of identifying an overseas citizen of India, prioritised it over birth (jus soli), congealing the trend towards the association of citizenship in India with blood ties, which had begun in 1986.

The 2003 amendment made an emphatic shift towards descent by constraining citizenship by birth. In other words, one could be an Indian citizen by birth only if both of her or his parents were Indian citizens, and none of them was an illegal migrant.

The 1986 amendment

An illegal migrant is generally understood as a foreigner who entered India without a valid travel document, or stayed beyond the permitted time.

In an amendment in the Citizenship Act in 1986, the illegal migrant was specified, in the context of Assam, as a person who entered Assam after March 24, 1971, and was identified as such for deportation under the (now repealed) Illegal Migrants Determination by Tribunal Act, 1983.

The 1986 amendment was a consequence of the Assam accord in 1985, and intended to resolve the foreigners question (namely the flow of immigrants from Bangladesh), which had driven the Assam movement.

The amendment inserted an exception for Assam in the Citizenship Act, leading to a situation whereby Assam saw itself as bearing an additional load because of the shift in the chronological boundaries of citizenship for the state to March 24, 1971, instead of July 19, 1948, which is the cut-off date for the rest of India.

However, it may be noted that the illegal migrant in the 1986 and 2003 amendments did not specify any religion for the purpose of inclusion or exclusion.

Displaced persons vs illegal immigrants

More recently, the contest over illegal migration and citizenship was made manifest in the orders given by the Supreme Court in two sets of public interest litigations that questioned the validity of Section 6A of the Citizenship Act, which pertains to citizenship in Assam and the question of foreigners and illegal migrants.

It is in particular the second public interest litigation by two NGOs Swajan and Bimalangsu Roy Foundation that questioned the clubbing of all immigrants who entered India after March 24, 1971, as illegal, and asked that they must be distinguished from “displaced persons” (primarily Hindus and other minority groups fleeing persecution), who must be given legal status of citizens.

Pointing out that Section 2 of the Immigrants (Expulsion from Assam) Act, 1950, protects from expulsion any person “who on account of civil disturbances or fear of such disturbances” in any area forming part of Pakistan (now Bangladesh) has been displaced from, or has left his place of residence, and has been subsequently residing in Assam, the petitioners ask that displaced persons should constitute a distinct category for legal protection, and that Hindus seeking shelter in Assam should be given citizenship on the same grounds that they have been given in Gujarat and Rajasthan between 2004 and 2007.

After the Bharatiya Janata Party-led National Democratic Alliance came to power in 2014, its leaders, including BJP chief Amit Shah, spoke in rallies in Assam assuring citizenship to Hindus who had fled to India to escape religious persecution in Bangladesh.

Indeed, the government had promised to enact a law for the rehabilitation of Hindu refugees from Pakistan and Bangladesh, setting up a task force to expedite pending citizenship requests from refugees, and issuing long-term visas of 10 years to 15 years, wherever citizenship requests were taking long to process.

At the same time, echoing the campaign speeches of Prime Minister Narendra Modi in the 2014 Lok Sabha elections, Shah had been convincing people in Assam that the BJP would get rid of “infiltrators.” Indeed the BJP declared immigration policy a major plank of its campaign in the Assam Assembly elections this year, which the BJP won.

Political consensus evasive

By identifying members of all major religions barring Islam from Afghanistan, Bangladesh and Pakistan as exceptions to the general law governing entry into India and the definition of foreigners and illegal migrants, and by making special provisions for their citizenship on the grounds of religious persecution, the present amendment has introduced religion as a new principle into the citizenship law.

Indeed by marking out Islam as a residual category, it reiterates the narrative of Partition without, however, incorporating the principles of inclusion that were present in both the Constitution of India and the Citizenship Act of 1955 at its inception.

On the other hand, despite the push towards imposition of religion as an organising principle of citizenship by law, a political consensus on the issue remains fractured.

Competing claims to citizenship that foreground regional and ethnic identities and access to resources by indigenous groups have been made, reminding the government of the constitutional protection that these groups have had. While religious persecution is a sound principle for differentiation, it cannot be articulated in a manner that dilutes the republican and secular foundations of citizenship in India.

Anupama Roy is a professor at the Centre for Political Studies at Jawaharlal Nehru University.