NRC OR CAA: DUAL ROAD TO INDIAN CITIZENSHIP

For decades now, the illegal immigration of Bangladeshis into India’s North-Eastern State of
Assam has been a cause of conflict. The exponential growth of immigrants in Assam,
combined with the belief that the immigrants posed a threat to the Assamese cultural identity,
culminated in the Assam Agitation.

The Agitation ended with the implementation of the ‘Assam Accord’ which can be
characterized as a ‘Memorandum of Settlement’ signed between the leaders of the movement
and the Central Government in India. Although this document addressed various important
aspects like registration of birth and death, and economic development, some of the most
prominent clauses addressed the issue of illegal immigration into Assam. Clause 5 of the
Assam Accord set March 25, 1971 as the cut-off date, which meant that any immigrant who
entered into Assam after this date could not be included as a citizen and must be expelled as a
‘foreigner’. [1]

Under the Indian law, there are only two categories that a person can fall under, either a
‘citizen’ or a ‘foreigner’; there is nothing like a ‘refugee’, an ‘asylum seeker’, or any similar
status. This is added by the fact that India is not a signatory to the Convention on the Status
of Refugees, 1951 or the Protocol Relating to the Status of Refugees, 1967.

Recently, the Government introduced the scheme of a ‘National Register for Citizens’
(hereinafter, NRC), a roll of all those persons who can prove their legitimate citizenship to
India. This is to be traced by their ancestors whose names were mentioned in the electoral roll
before the cut-off date. With the introduction of the NRC, the Assamese finally felt like the
illegal immigrants would be expelled and all threats to the Assamese culture would be
eliminated.

However, the Government introduced the Citizenship Amendment Bill (hereinafter, CAB) in
January 2019. This is a bill that talks about granting citizenship to people belonging to
minority communities from nearby countries of Pakistan, Afghanistan, and Bangladesh. The
opposition has significantly criticized this Bill because it discriminates on the basis of
religion. This is in violation of the Right to Equality under Article 14 and the Right against
Discrimination under Article 15 of the Constitution of India.

The Basic Structure Doctrine states that there are certain elements which, if taken away from
the Constitution, would extract the essence of it. The Supreme Court of India in SR Bommai
v. Union of India laid down that secularism is a part of the basic structure of the Constitution
of India. [2] Member of Parliament Shashi Tharoor, who belongs to the Opposition, has in the
House stated that this Bill makes religion the basis of granting citizenship and therefore is not
only in violation of the Right to Equality but also is in violation of the Basic Structure of the
Constitution.

The Union Home Minister, Amit Shah, has explained the Government’s decision in the
Parliament. He explained that the minority communities (namely Hindus, Sikhs, Buddhists,
Jains, Parsis, and Christians) are minority communities in Pakistan, Afghanistan, and
Bangladesh who face religious persecution and must be given refuge in India on
humanitarian grounds. Moreover, he also explained how the Muslims would not benefit even
if they were included within the course of this Bill because they do not face religious
persecution in the aforementioned countries (Pakistan, Afghanistan, and Bangladesh).

However, this issue is not limited to Assam anymore. After a long and expensive process of
drafting the NRC list under the aegis of the Supreme Court of India, the final list was almost
discarded by the Central Government. It was also announced by the Government that the
NRC exercise would be conducted again, and this time, throughout the country of India (the
Assam Accord is not applicable throughout the nation). With CAB getting into the picture,
this has a wider connotation – if one has immigrated to India from Pakistan, Afghanistan, or
Bangladesh, but is unable to prove their ancestry, he will not be granted citizenship.
However, if one pleads immigration from one of those countries due to fear of religious
persecution (the cut-off year in this case has been extended to 2014), he will only have to
show that there was a well founded fear of religious persecution on the date when he entered
India (which must be before December 31, 2014). However, this relief is available only to a
select category, as mentioned in CAB – these restrictions are not only based on religion but
also the nations people fled from.

On December 10, 2019, this Bill was passed and is now known as the Citizenship
(Amendment) Act, 2019 (hereinafter, CAA).

NRC or CAA: which is the better alternative?

The citizenship laws in India were given a new dimension altogether with the introduction of
the Citizenship (Amendment) Act, 2019. For the first time, a law to legitimize outsiders as
citizens, although with reservations, was drafted. However, this law, which is claimed to be
inclusive by nature, is contradictory to the process of NRC.
Those who are left out of the NRC can turn to the CAA for inclusion into the NRC (subject to
eligibility criteria listed under the Act). However, the demands of the CAA and NRC are
totally opposite when it comes to the question of citizenship. While the NRC asks one to
prove that they are citizens of India, the CAA asks one to prove that they are foreigners and
have fled due to the fear of religious persecution before they can ask for citizenship and
consequential inclusion into the NRC. This makes it very clear that a person who is applying
for inclusion into the NRC is either a citizen of India, or an outsider eligible for Indian
citizenship under the CAA, but not both. This is the point where the two laws cross paths
again – if a person already claimed to be a citizen when applying for the NRC, how can they
now claim to be a foreigner in order to be eligible under the CAA? One is either an Indian
citizen or a foreigner, but not both at the same time.

In practice, CAA and NRC seem to be contradictory in nature and the differences in their
applications deprive relief to those who have been rejected in the NRC process thus far.
Rather, they bring relief to foreigners who had not applied for inclusion into the NRC but
who would now be willing to apply for Indian citizenship.

It is therefore true that NRC and CAA are different, but they are two steps of the same
process – the road to citizenship. CAA as a law should have been able to relax eligibility
criteria for those who were excluded from Indian citizenship (through the NRC exercise). But
it is not safe to say that those who were excluded from the NRC after making claims for
Indian citizenship are in trouble because they had already submitted documents to show their
citizenship to India. If they resort to making a citizenship claim from a different country to
seek refuge (and subsequently citizenship), it is problematic because making two
contradictory demands reflects false claims and documentations in one of the two
alternatives.

The combination of the two processes is only indicative of the fact that the intent of giving
legitimate citizenship to outsiders will fail for people who already applied for inclusion into
the NRC and got rejected. Had this law been rolled out before the NRC process began, more
benefit could have been obtained by the eligible groups as they would not have made claims
to be Indian citizens if proving to be foreigners was an easier claim.

It is safe to say that one who tries to take a dual way to citizenship will get himself sunk into
the water. The contradictions of NRC with CAA are latent and will hit many of the excluded
persons who will eventually apply under the CAA after getting rejected in the normal
procedure of the NRC. Perhaps their only solution will come in the CAA Rules which are yet
to be announced by the government. These Rules are much anticipated because they will give
more clarity to those who are eligible for citizenship to India under CAA.

The NRC has only been implemented in the state of Assam as of now, so the brunt of the
contradictions in NRC and CAA is only going to be faced by those excluded in this State.
This will set a precedent for other states and prevent them from making the mistakes that
were made in Assam. A nationwide NRC process is soon to begin as per the Central
Government, but no details have come out yet. Therefore, other eligible refugees who came
to India and did not make a claim for Indian citizenship during the NRC process can take
advantage of the provisions of the CAA, thereby escaping the dual route (of contradictory
claims) to citizenship with more clarity. While this means that the people in Assam have been
deprived of this benefit, the government has denied that CAA will be linked with the NRC.
[3]

As the largest democracy in the world and second most populous country, this matter is of
obvious interest to the global community. Only with time will this issue find its final result,
but the world awaits to see a new regime of giving and stripping of citizenship.

The opinions and views expressed in this publication are the opinions of the designated
authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our
staff, or our clients.

Sources:

[1] “Clause 5 of Assam Accord: Foreigners Issue”. Government of Assam.

https://assamaccord.assam.gov.in/portlets/assam-accord-and-its-clauses#Clause%205%20of
%20Assam%20Accord%20:%20Foreigners%20Issue

[2] Sorabjee, Soli. 1994. “Decision of the Supreme Court in S.R. Bommai v. Union of India:
A Critique”. The Practical Lawyer. Eastern Book Company. 1994.
https://www.supremecourtcases.com/index2.php?
option=com_content&itemid=54&do_pdf=1&id=223
[3] “What is NRC: All you need to know about National Register of Citizens”. India Today.
December 18, 2019. https://www.indiatoday.in/india/story/what-is-nrc-all-you-need-to-know-
about-national-register-of-citizens-1629195-2019-12-18