Citizenship laws in India and Refugee policy

By Fen Mathew


The Indian Government passed Citizenship Amendment Act in 2019 which brought changes to citizenship Act 1955 and caused a situation of turmoil and unrest among the Muslim refugees living in India.

This step was taken by the government after the recent surge of Rohingya Muslims into the country that fled from Myanmar after facing prosecution in their country, but the Amendment not only effects the Rohingyas but all the refugees who fled to India from neighbouring countries decades ago.

Citizenship as per Indian laws

Part II of the Indian constitution under Articles 5 to 11 lays down the rules and provisions of citizenship at its commencement and Section 3 to 7 of the Citizenship Act, 1955 lay down different methods of acquiring citizenship such as through birth, descent, naturalisation and incorporation of territory.

Although the legislature made such intricate and detailed laws about the citizens of India, the laws regarding the status of stateless individuals are still in questions and often a matter of debate and after living in India for decades, they are still struggling for an identity.

The Citizenship Amendment Act, 2019 aimed at recognising the citizenship of refugees which came to India long time ago but the government’s focus on only non-Muslim communities started a controversy and protests all across the country.

Who is a refugee? Refugee crisis in India

According to United Nations High Commissioner for Refugees (UNHCR), Refugees are people who have fled war, violence, conflict or persecution and have crossed an international border to find safety in another country.[1]

Refugees are defined and protected in international law. The 1951 Refugee Convention defines a refugee as, “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”[2]

Status or the term refugee has not been defined by India in any Act or law and it is predominantly decided by the protection they receive from the government. The largest single bilateral flow in South Asia took place in 1947 when the partition of the Indian subcontinent took place, and in 1971 when Bangladesh became independent.

Nearly seven million Bengali Hindus had crossed the border into West Bengal, Tripura, and Assam to refugee camps built and sustained by the Indian government.[3]

Since its independence, India has seen several waves of refugees turning to India for protection and shelter.

The first movement was seen during the India Pakistan partition when thousands of people entered India either wilfully or forcibly. They did not lose their nationalities but were forced to love a life of refugee as they struggled to seek asylum in newly made India.

The second major movement of refugees took place around 1959 when Dalai Lama along with almost 100,000 Tibetans fled Tibet seeking asylum in India. India provided asylum to him and thousands of Tibetans in the areas of north and eastern state and the seat of Dalai Lama was established at Dharamshala, Himachal Pradesh where he runs the Tibet government in exile[4].

The third major movement of refugees into India happened around 1971 when Bangladesh was fighting for its independence. The tussle between Pakistan army and Bangladeshi forces led to movement of millions of Bangladeshis into India who settled themselves in the states near Bangladesh.

Settlements of these refugees in north-eastern states has led to continuous conflicts among the Bangladeshi refugees and locals of the states and they are predominantly in the states of Assam, Tripura and Manipur. They allege that inflow of refugees into their states have affected the demography and made them a minority in their own states.

The next major movement of refugees was when Sri Lankan Tamils came to India as they faced discrimination in Sri Lanka. They recognised themselves as Tamils and settled in Tamil Nadu which made their life easier.

More than 1.34 lakh Sri Lankan Tamils crossed the Palk Strait to India between 1983 and 1987 during the first in flow. In three more phases, many more refugees entered India. The war-torn Sri Lankans sought refuge in southern India with more than 60,000 refugees currently staying in 109 camps in Tamil Nadu alone.[5]

While not in large numbers but there had been movement of refugees from Afghanistan into India around 1980 who have mainly settled themselves into Northern states.

It was the movement of Rohingya Muslim refugees into India around 2017 brought up the need of CAA, 2019 when the government felt that they were living in India illegally and laws had to be made to stop the movement of fleeing Rohingyas into India.

As per the report published by UNHCR as on 31st January 2020, the total number of refugees and asylum seekers in India was calculated to be 210,201. They are divided according to their country of origin as follows:

  • Tibet – 108,005
  • Sri Lankans – 95,230
  • Myanmar – 21,409
  • Afghanistan – 16,333
  • Others – 3477

Constitutional Amendment Act and NRC

Indian laws do not give specific details about the citizenship of refugees that are settled in India but after the passing of Citizenship Amendment Act 2019, the government laid down the provisions of providing the status of citizens of refugees who had fled to India on or before December 2014.

The controversy and the outrage that emerged in the country was due to the selective nature of the Act as it was unfavourable to the Muslim Community.

Citizenship Act, 1955 as we read above provides for various methods in which citizenship of India can be acquired and also regulates the rights of Overseas Citizen of India Cardholders (OCIs) but there are no laws regarding the refugees.

They are treated as illegal immigrants who have entered India illegally without proper documents such as visa or they have stayed more than the period allowed to them. Citizenship Amendment Act 2019 amends the 1955 Act and states that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from countries Pakistan, Bangladesh or Afghanistan who entered India on or before December 31, 2014.

The amended Act allows a person to apply for citizenship by registration or naturalisation. For instance, if a person is staying in India for one year and one of his parents is Indian citizen, he can apply for registration for Indian citizenship. But the conflict across the country came up when the process of naturalisation was discriminatory in nature.

It amended a provision which laid down that person must have lived in India or worked for the federal government for at least 11 years before they can apply for citizenship but there was an exception to communities like Hindus, Sikhs, Buddhists, Jains, Parsis and Christians if they came from Pakistan, Afghanistan or Bangladesh.

The above-mentioned communities only required to work or stay for five years before they could apply for citizenship and this selective policies by the government started protests against CAA all across the country.

It also says people holding Overseas Citizen of India (OCI) cards – an immigration status permitting a foreign citizen of Indian origin to live and work in India indefinitely – can lose their status if they violate local laws for major and minor offences and violations.

It also added that provisions of illegal immigrants will not be applicable to the tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.

Constitution and Refugees

Though the word refugee has not been mentioned in constitution anywhere but the people who are from outside India and are living in India are called aliens and are vested with some fundamental rights mentioned under the constitution.

First and the foremost right vested to them is under Article 14 which is equality before law and states that state shall not deny to any person equality ­before the law or the equal protection of the laws within India.

Protection of life and liberty under Article 21 which provides that no person shall be deprived of his life and personal liberty except procedure established by law.

Other rights guaranteed to them is the right to approach the courts under Articles 32 and 226 when their other rights are infringed by the state and they need protection by the Courts.

In Louis De Raedt Vs. Union of India[6] the Court held that even non- citizens have the fundamental right to life, liberty and dignity. This right of life is followed by right against arrest and detention.

In case of Majid Ahmed Abdul Majid Mohd. Jad Al-Hak Vs. Union of India[7], the Court upheld that food and medical care should be provided to detainees as they are the bare minimum essentials for survival.

Time and again the Courts have tried to protect the rights of refugees by giving judgments in their favour and directing the state to make friendly laws that protect their interest and work according to human rights conventions.

  6. Mr. Louis De Raedt & Ors vs Union of India and Ors on 24 July, 1991
  7. Mr. Majid Ahmed Abdul Majid Mohd. Jad Al-Hak Versus Union of India & ors Criminal Writ Petition No. 60 of 1997; Crl. W. 60/97

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