Author: Paikar Mustafa

Law Graduate, 2019

Law College Dehradun, Uttarakhand

ABSTRACT The movement of people from one country to another in search of better opportunities, refuge, protection, etc. can be termed as migration. Sovereign states have laws governing immigration and immigrants. India is a vast nation with diverse cultures sharing its border with seven countries from most of which it observes an inflow of immigrants rather illegally. The article throws light upon certain laws regarding citizenship, nationality, and foreigners while elaborating on the key changes made by periodical amendments and their implications on immigrants’ issues. INTRODUCTION Migration in common parlance means the movement of people from one place to another. Immigration in this sense means the process of moving to a country, not of birth, to permanently settle there. The migration of people is motivated by many reasons - educational, political, economical and personal. It changes the volume of the population, brings diversity in the given population of countries, and also affects the resources consumption in a given time. The sovereign nations have developed laws for the regulation of immigration and immigrants for security and integrity purposes. These laws govern matters regarding nationality, citizenship, entry, and exit of persons in and outside the state respectively. India gained its independence from the clutches of British rule in 1947. The period witnessed partition based on the two-nation theory. The period after independence saw a barrage of migration and the plight of people who were forced to migrate. India has fought wars with neighbouring countries since independence and played a major role in separating Bangladesh from Pakistan in 1971. India shares borders with seven countries - China, Pakistan, Bhutan, Myanmar, Bangladesh, Nepal, and Afghanistan. India has always faced immigration of people within a country illegally, while some have come as refugees, some have come seeking protection from being persecuted in the country of their origin. India has adopted a humanitarian approach in dealing with matters of refugee and migrants. The laws on immigration relate to the citizenship and nationality laws determining the legality of the person within the territory of India.

IMMIGRATION LAWS: OVERVIEW Part II, Articles 5 to 11 of the Constitution of India deals with Citizenship. Article 5 provides that during the commencement of the Constitution, every person who is domiciled in the territory of India and Who was born in India (Citizenship by birth), either of whose parent is born in India or an individual who has been residing ordinarily in India for five years before the commencement of the Constitution, shall be the citizen of India. Article 6 grants rights of citizenship to certain persons who have migrated to India from Pakistan. It provides that such persons shall be deemed to be the citizens of India at the commencement of the Constitution if: If a person migrated from Pakistan to India before 19 July 1948 shall be considered as an Indian citizen if either of the person’s parents or any of his grandparents were born in India as expressed in the Government of India Act, 1935 and has been living or residing since the date of migration. For people who migrated after 19 July 1948, they should be registered as a citizen of India by an officer from the Government of India but for registration, the subject has to be a resident in the territory of India for a minimum of six months, preceding the date of his application. Article 7 provides an elaboration of the right of citizenship for certain migrants to Pakistan. It says that any person who has migrated to Pakistan after 1 March 1947 shall not be deemed to be the citizen of India. The article excludes the persons who have emigrated from Pakistan to Indian territory under the permit of resettlement or returning permanent issues by lawful authority. Article 8 provides the right of citizenship of certain persons who are Non-Residents of India. Article 9 provides for the termination of citizenship of India on voluntarily acquiring citizenship of any foreign nations. Article 10 provides for the continuance of rights of citizenship. Article 11 empowers the Parliament to make laws regarding the matter of citizenship concerning acquisition or termination or otherwise. It is in the pursuance of this Article, the Indian Citizenship Act was enacted by the Parliament of India in the year 1955.

The Foreigners Act, 1946 came into force on 23rd November 1946 and comprehended certain powers of the Central Government regarding the arrival, existence, and departure of the foreigners in India. J. Desai in the case of Bawalkhan Zelanikhan vs B.C. Shah, after pointing to Section 3, explicitly stated that “the object of the Act appears to be to provide for prescribing, regulating and restricting amongst other things the presence and continued presence of a foreigner in India. What appears to have been intended is to confer power on the executive authority to prescribe and specify conditions for the continuance of a foreigner in India….. It appears to have been intended by the Legislature to leave the whole matter of the foreigner's presence in India to the executive discretion of the Government.Important provisions The following are some of the important provisions of the Act: Section 3 and Section 3A delegates unbridled legislative power upon the Central Government. It empowers the Union Government to make orders concerning all or any or any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their egress from or presence in India. In both the preamble and in Section 3 and Section 3A of the Foreigners Act, 1946, the legislative policy regarding the entry, stay and departure of foreigners from this country has been sufficiently indicated[1]. Section 9 lays the burden of proving that a person is a foreigner is upon the same person who is contesting it. Section 14 provides for the penalty for contravening the Act. After the 2004 Amendment Sections 14A, 14B, and 14C were added that made the Act stricter. The Registration of Foreigners Act, 1939, came into force on 8th April 1939 and provides for the registration of foreigners entering, being present in, and departing from India. The object behind the Act was to allow the Government to have complete knowledge, i.e., the numbers and whereabouts of all the foreigners visiting the country. This information was vital not only for national security but also to handle all the inquiries received from the relatives of foreigners visiting the country. Initially, the Act had an overall 9 Sections; however, they repealed Section 9. Important Provisions: Section 2 of the Act defines ‘foreigners’ as a person who is not a citizen of India. Section 3 empowers the Central Government to make rules concerning foreigners. Section 4 lays down the onus of proving whether a person is a foreigner shall lie upon such person, regardless of the Indian Evidence Act, 1872. Section 5 provides for the penalty if a person contravenes the Act. It provides that if a person is a foreigner, he shall be punished for 1 year of imprisonment or fine which may extend to one thousand rupees or with both, and if such a person is not a foreigner, then with fine which may extend to five hundred rupees. Section 6 empowers the Central Government to pass an order that the Act shall not apply to any individual foreigner or any class or description of a foreigner. However, the Parliament should receive a copy of such an order. Section 7 protects the person from any suit, prosecution, or any legal proceedings, who is Acting under the Act. It is the Constitutional right of every person to freely move from one place to another. The same freedom can be curtailed by the procedure established by law. Since there was no law governing the same any such restriction on freedom of movement was considered to be violative of Article 21, i.e., the Right to life. If the government refused to issue a passport to any person, such refusal was violative of Article 14 of the Constitution. Thus, it was inevitable to govern the regulations regarding the issuance of the passport. Hence, the Parliament passed The Passport Act, 1967, which received the President’s assent on 24 June 1967. Important Provision: Section 2 of the Act is the interpretation provision. It defined the term 'passport' as a passport issued or deemed to have been issued under this Act. Section 3 provides that a person can only depart from India if he/she has a valid passport or travel documents.

Section 4 lays down the classes of passports and travel documents. Section 6 lays down the grounds[2] upon which the passport authority can decline the issuance of passport. Section 10(3) empowers the passport authority to impound or revoke the passport or travel document of the passport holder on the grounds laid down in the Section. Section 12 is a penal clause. It prescribes punishment for various offences laid down in the said provision. Section 13 provides persons who can make arrests. The section also provides the steps involved after the arrest. The Citizenship Act 1955 came into force on 30 December 1955 with an object to provide for the acquisition and termination of citizenship. The Act has been amended several times to pace with the changing policies on immigration, identification of new issues, and bringing reforms in the existing immigration laws. The Act of 1955 as amended in 2004 provided for the definition of “Illegal Migrants”. Sec 2(b) defines it as a foreigner who has entered India: i) without a valid passport or other travel documents as required by lawful authority ii) with a valid passport or other travel documents as required by law but has stayed in India beyond the permitted period. The first amendment in the Act was made in 1986 as an aftermath of the Assam Movement and Assam Accord. Assam is a north-eastern state of India. The popular movement against illegal migrants started in 1979 on a wide scale which was led by All Assam Students Union and All Assam Gana Sangram Parishad to impel the Indian Government to identify, determine and expel the illegal immigrants to preserve the Constitutional, administrative and legislative safeguard of Indigenous Assamese Populace. The intensified protests and demonstrations to make Assam “infiltration free” led to the enactment of Illegal Migrants (Determination by Tribunals) Act in October 1983. Several talks of negotiations were held between the leaders of AASU-AASGP during 1984 and early 1985. The leaders representing the movements demanded to disenfranchise and disperse the illegal immigrants who have entered Assam from 1961 to 1971. The unrest caused by the movement officially came to quietus on 15 August 1985, when the Assam Accord was signed by the leader of AASU-AASGP and the then Government of India. The major outlines that were agreed in the Accord were: 1) It was the Memorandum of Settlement in the form of the Tripartite Agreement. 2) The Accord officially ended the Assam Agitation and paved the way for the leaders of agitation to form a government in the State. 3) All those illegal immigrants who had entered Assam before January 1, 1966, were to be given the rights of citizenship including the right to vote. 4) All illegal migrants who have entered Assam after March 25, 1971, to be identified and deported. 5) All the entrants between the period of 1961 and 1971 were to be given citizenship rights but would be denied voting rights for 10 years. The 1986 amendment to the Citizenship Act made the provision for citizenship by birth stringent by stipulating that it is no longer necessary to be born in India to be granted Indian citizenship. Either parent at the time of birth has to be an Indian citizen for the child to become an Indian citizen. The Amendment Act of 1992 The Act provided that if the father is Indian at the time of birth, a person born after January 26, 1950, but before the commencement of the Act shall be a citizen of India; if any of the parents are Indian after the commencement of the Act, that person shall be Indian. The Amendment Act of 2003 introduced and defined the concept of illegal immigrants who can be jailed or deported. It provided that such illegal migrants are not eligible for citizenship by the process of registration or naturalization. The Act restricted citizenship by birth by providing that one of the parents must not be an illegal migrant at the time of birth on or after the commencement of this Amendment Act. The requirement for citizenship by registration was increased to seven years from five years for the persons of Indian origin. The Amendment Act mandated the Central Government to prepare and maintain a National Register of Citizens and to issue national identity cards for all citizens. (Section 14A) The requirement for citizenship by naturalization for the residence was increased to 12 years which was earlier 10 years.

The Act introduced the concept of an overseas citizen of India. A person may be registered as an overseas citizen according to the Section 7A of the Act if: i) s/he is a citizen of another country, but was the citizen of India at the time or any time after the commencement of the Constitution ii) s/he is a citizen of another country but was eligible to become a citizen of India at the time of the commencement of the Constitution. iii) s/he is a citizen of another country but belonged to a territory that became part of India after 15th August 1947. iv) s/he is a child or grandchild of any citizen aforementioned. It excluded the persons who are or have been the citizens of Pakistan, Bangladesh, or such other counties as notified by the central government. The Amendment Act of 2005, increased the period for registration of citizenship for persons already registered as an overseas citizen for five years before making an application that must be residing in the territory of India for two years. The central government released two notifications in 2015 and 2016, exempting some classes of illegal migrants from the provisions of the 1946 Foreigners Act and the 1920 Passport (Entry into India) Act. These communities are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan who arrived in India on or before December 31, 2014. In the meantime, the Illegal Migrants (Determination by Tribunal) Act, 1983 was struck down by the Supreme Court in 2005 on the ground of violation of the right to equality based on the geographical classification as the Act was applicable in Assam only while in the rest of the Country the Foreigners Act, 1946 was applicable. The Citizenship (Amendment) Act 2019 was passed by the Parliament in December 2019. The Act substantially made changes in the definition of illegal migrants and extends the grant of citizenship to illegal migrants belonging to certain communities. The Act amended sec 2(1)(b) of the Act of 1955 by excluding persons belonging to minority communities namely Hindus, Sikhs, Buddhists, Jain, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan from the ambit of illegal migrants. The period for determining and extending this benefit was set on 31st December 2014. Thus, such persons shall be deemed to be the citizens of India from the date of their entry (on or before 31st December 2014).

On acquiring citizenship all legal proceedings against illegal migrants related to their illegal migration or citizenship pending in any court, the tribunal will be closed. Further, the Act amended clause (d) of the Third Schedule of the Act by reducing the period of residence in India of these minority communities’ migrants for the acquisition of citizenship through naturalization to 5 years which was earlier 11 years. However, the Act is not made applicable throughout India and shall not apply to the tribal areas of states of Assam, Meghalaya, Mizoram, and Tripura mentioned in the Sixth Schedule of the Constitution. The Act shall also not apply to the “Inner line areas” notified under the Bengal Eastern Frontier Regulation, 1873. Presently, the system applies to the states of Arunachal Pradesh, Mizoram, and Nagaland. Manipur has also been brought under this permit by notification. The Act was welcomed as the great initiative to protect the minority communities who fled the country of their origin (Bangladesh, Pakistan, and Afghanistan) in the fear of persecution. Per contra, the Act invited the deluge of criticism with the argument that it is violative of Article 14 of the Constitution which guarantees equality and that the classification made hereunder is not reasonable. Further, it was argued that several other refugees from other countries like Srilanka, Myanmar, Nepal, and Bhutan have been excluded. Albeit the government gave the clarion notification that the Act is not to take away citizenship but to grant it and that it will have no adverse effect on Indian Citizens belonging to minorities. India should protect the human rights of these people, shelter them, grant them citizenship so that their right to life is not ceased within the territory of India. The enactment of this Act is viewed as a reason to implement the Nation-wide National Register of Citizens which has been done in Assam under the orders of the Supreme Court. The NRC in Assam was concluded in August 2019, leaving out 19 lakhs foreigners irrespective of religions. The process was cumbersome and was completed with heckles. It was alleged that many people that ought to be included in the list of citizens are singled out due to administrative error or erroneous classification. Several petitions are pending the Foreign Tribunals and Supreme Court as well. The Act is viewed in contradiction of the Assam Accord where the cutoff date was fixed on 24 March 1971. The Constitutionality of the Act is sub-judice in the Supreme Court of India. CONCLUSION

Internationally, statelessness is considered as a deprivation to human existence. International law provides for the protection of the refugees. The Refugee Convention of 1951 and protocol Of 1967 provides in detail the rights and duties of the States having refugees. India is not yet a party to any Refugee statute but is a signatory to the other UN treaties and conventions such as Covenant on Civil and Political Rights, 1966, The Universal Declaration of Human Rights, 1948, etc. Citizenship in itself is a privilege as it entitles a person to certain rights of the nation and enables him to take part in socio-political Activities. On the one hand, where India must maintain the impression of a torch-bearer of human rights whereby any law discriminating among the illegal migrants would be seen as a dent on this approach, it is equally necessary to maintain the equilibrium of the domestic population and resources available within the country. The illegal migrants cannot be infused at the expense of the native population. The migrants coming clandestinely cannot be ignored for national security and integrity. The Amendment Act of 2019 was based on the humanitarian approach, which can rightly be termed as “selectively-humanitarian” but was warranted by the National demand. Furthermore, the process of identification and deportation is in itself a herculean task, and uniformity and universality by express law made in this regard should be made with little reasonable room of discretion to be bestowed upon administrative authorities.

[1] A.H. Magermans vs S.K. Ghose And Ors. AIR 1966 Cal 552

[2] the applicant may engage in Activities prejudicial to the sovereignty and integrity of India; the presence of the applicant is detrimental to the security of India, or prejudice the friendly relations of India with that OF any other country; the Central Government believes that presence of the applicant in such country is not in the public interest.

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