Talk:Citizenship (Amendment) Act, 2003

Illegal migrants

[Copied from Talk:Citizenship (Amendment) Act, 2019#New paragraph 1]

@Kautilya3: Any scholarly source for "But the restriction that illegal immigrants (or their children) cannot ever become citizens was introduced in 2003 "? I see you included this in the new article Citizenship (Amendment) Act, 2003 you created, in the lead and cited Mihika Poddar. But, I do not see this in there. Poddar writes, "To put this into context, illegal immigrants [note 7] are not eligible to apply for citizenship by naturalisation, being specifically excluded under s 6 of the Act." The [note 7] explains that "not eligible" part is in the 1955 Act. Please check and correct if appropriate, or explain where you are seeing this. I note that you cited 4 sources, but beyond Poddar the other two are not about the 2003 Act, and the 4th is a newspaper, something we should avoid given their casual/non-specialist/error-prone writing on law/complex topics. The Poddar source is RS. You can also check Jayal, Roy etc on this. Please consider replacing that incorrect information with the 11-year proviso in the 2003 Amendment, which is what I feel you might have had in mind. Ms Sarah Welch (talk) 18:06, 2 January 2020 (UTC)

Hi Sarah, the 2003 amendment has received very little attention from the media as well as scholars. Since all parties supported it, people apparently thought everything was nice and peachy. So, I checked the actual law. The Universal book gives the 2003 amendment in the first chapter, the amended 1955 law in the second chapter. The page numbers are for the PDF file from the UNHCR download. The clause is there in both section 5 (registration) and section 6 (naturalisation). The amendment to the section 3 (by birth) means that if either parent is an illegal immigrant, the children don't qualify for citizenship. So, they are de facto illegal and are liable to be deported etc. (Remember that that they have to live in India legally for seven years before they can even apply for citizenship.) Before 2003, these restrictions weren't there. The children of illegal immigrants could in theory apply for citizenship. -- Kautilya3 (talk) 19:10, 2 January 2020 (UTC)

What is generally called the "1955 Act" is the version after applying all the amendments up to 2003. The footnotes generally tell you when the particular pieces of text were introduced in amendments. I haven't been able to find the original Act anywhere, but we have some idea of it from the books of Anupama Roy and Niraja Jayal. -- Kautilya3 (talk) 19:18, 2 January 2020 (UTC)

Found the original 1955 Act at legislative.gov.in, p.307– -- Kautilya3 (talk) 19:46, 2 January 2020 (UTC)

@Kautilya3: Jus soli was available prior to 1986, and the rules became more restrictive in 2003. In other words, pre-1986: Children born in India to illegal immigrants were citizens because they were born in India (jus soli). 1987-2003: Children born in India to a mother OR a father who is an Indian citizen were considered citizens. Post 2003: Children born in India to either illegal immigrant mother or father became ineligible for citizenship. However, Poddar isn't saying "the restriction that illegal immigrants cannot ever become citizens was introduced in 2003 ". This was already there in 1986. Poddar is explaining the first and second proviso under "the Act" – a term defined on page 108, in Introduction section, 4th line as the "1955 Act". On page 111, Poddar explains how Assam Accord necessitated this, and post-1971 rule about "illegal immigrants" (note too the "first time that religion was made an explicit..." part). For additional sources, see [a] Anupama Roy (search for "illegal migrants" if you do not have full access to the book); [b] this, #6 Citizenship by naturalisation, #19 Repeals and the footnotes. Yes, the 1955 pdf you linked is the original. Ms Sarah Welch (talk) 20:16, 2 January 2020 (UTC)

(ps) note the part in Anupama Roy's source about

"the state government informed the court [in a 28 August 2000 affidavit] of the various appeals it had made to the central government for the repeal of the Act as well as for making appropriate amendment to the Citizenship Act 1955 in order to declare the children of the illegal migrants entering into India after 1971 as foreigners"

. Ms Sarah Welch (talk) 20:26, 2 January 2020 (UTC)

Hi Sarah, the first bullet point of Citizenship (Amendment) Act, 2003 states the introduction of "illegal immigrants" as part of this amendment, along with citations. I am pretty sure it wasn't there earlier. Your (ps) above in fact confirms that it wasn't there earlier. -- Kautilya3 (talk) 20:38, 2 January 2020 (UTC)

You seem to be assuming that, if some piece of text is labelled as "The Citizenship Act, 1955", the text dates from 1955. Nothing of that sort. "1955" is part of the name of the Act. That is how lawyers operate. Don't ask me why. -- Kautilya3 (talk) 20:40, 2 January 2020 (UTC)

@Kautilya3: No that was/is not my assumption. I was just identifying what Poddar means by "the Act". The repeal request is referring to the IMDT Act of 1983. There are two significant parts to your sentence, one about children of illegal migrant(s) and another about illegal migrant(s) themselves. We agree on the major impact of 2003 Amendment on the children born after 2003. What we disagree on is whether it was the 2003 Amendment or the 1986 Amendment that restricted if and how the illegal migrants can apply for naturalization. If I haven't missed something, nowhere does Poddar or Roy support "was introduced in 2003". Quote it here, if you can find something. Else, perhaps you can identify the footnote or something somewhere that indirectly supports the "introduced in 2003" part? Ms Sarah Welch (talk) 21:35, 2 January 2020 (UTC)

Sorry, I didn't realize that the Google Books isn't showing the page numbers for Anupama Roy's book. Here is the relevant quote from p.138:

In 2003, we see alongside the transnational/overseas Indian citizen, the ‘illegal migrant’ figure in the Citizenship Act in the provision relating to citizenship by birth, making it exclusive and conditional.

That is about all she says. (As I said previously, nobody understood what the 2003 Amendment meant until the Assam NRC happened, Anupama Roy included.)

And, you have checked the Universal's page 2 for the Act itself, did you not? -- Kautilya3 (talk) 21:54, 2 January 2020 (UTC)

Yes. In case you haven't, please do read the 1986 Amendment, Assam Accord and the IMDT Act 1983 at the minimum. You may find these comments made in 1986 interesting too, Ms Sarah Welch (talk) 23:20, 2 January 2020 (UTC)

Yeah, well, Rudolf and Rudolf called the Indian government a "paper tiger". But why did all these commentators go to sleep in 2003? -- Kautilya3 (talk) 23:55, 2 January 2020 (UTC)

References

K3: I am fine with the current wording of the lead. Please consider summarizing a bit from Chapter 2 of the Anupama Roy source, as background. It provides the context of the 1986 amendment and the Assam Accord, their relationship to the 2003 amendment, and the developments that led to the 2003 amendment. Ms Sarah Welch (talk) 08:13, 3 January 2020 (UTC)

Ok, I have copied your paragraph into the Background section. A couple of things I don't like here. The IMDT Act is a red herring, as I have mentioned before. It wasn't meant to deport illegal immigrants but rather to stop them from getting deported. (Kinda like the Pressler Amendment.) That is why the Supreme Court struck it down. Secondly, you state that the 1986 "blocked" the children from becoming citizens. It didn't. It just said that 'citizenship by birth' isn't available to them. They could still get citizenship by registration. -- Kautilya3 (talk) 22:07, 3 January 2020 (UTC)

I think I wrote, "effectively blocked jus soli citizenship to the children" (which is what you are saying too). Or did you mean some other edit diff? Ms Sarah Welch (talk) 22:38, 3 January 2020 (UTC)

Ok, you are technically right, but I don't like the language, which is misleading. Neither do I like the source, which is dealing with an entirely different subject. I will let it sit for now, but might change the wording later. -- Kautilya3 (talk) 00:51, 4 January 2020 (UTC)

On IMDT:

In addition, in 1983, the Congress government passed the Illegal Migrants (Determination by Tribunals) Act, thereby establishing a system to detect and expel foreigners through tribunal proceedings. This Act was struck down by the Supreme Court of India in 2005, in part because it required Indian citizens to identify and initiate tribunal proceedings against illegal foreigners. The court ruled that the Act was a big impediment to the proper and effective implementation of the Assam Accord. – Niraja Gopal Jayal (2013). Citizenship and Its Discontents: An Indian History. Harvard University Press. pp. 64–66. ISBN 978-0-674-06758-5.

I did hesitate on whether the above summary will distract, or whether it will complete the context. Given the significance and the impact of Assam movement that started in 1979, and the Assam Accord in 1985, I leaned on the side of including it. In my reading, IMDT wasn't designed "to stop them [Bangladeshi migrants] from getting deported", rather it was designed to avoid accusations and harassment of actual Indian citizens of being non-citizens and then burdening the accused to prove they are citizens. Noble in intent, yes. But, doomed to fail because there was no register and passprt/paperwork with real citizens to easily differentiate between the real Assamese Indian citizen and illegal Bangladeshi economic/etc migrant. Its practical impact was to void the Assam Accord by preventing the deportation promised in that Accord. This forebode the necessity of an NRC in Assam and northeastern states, whether people like it or not; and why their Supreme Court justly supported NRC. You may disagree with this, but that is how I understand the dynamics and that is how a legal scholar explained this to me earlier this week. I will go with your call, so please feel free to remove it entirely, or reword it, or just link it somewhere as a related Act. Ms Sarah Welch (talk) 13:22, 4 January 2020 (UTC)

Hi Sarah, I made a couple of posts at Talk:Illegal Migrants (Determination by Tribunal) Act, 1983. Please see those. You are welcome to read the whole journal article as well. Very englightening. -- Kautilya3 (talk) 23:38, 4 January 2020 (UTC)

My take is that the Congress was just protecting its vote bank. Pure and simple. -- Kautilya3 (talk) 23:42, 4 January 2020 (UTC)

Yes, your posts are spot on and deserve to be summarized in that article. On vote bank and the way IMDT was in practice implemented, your realpolitik insights are right again. See the IMDT discussion and how vote cards were given to the illegal migrants in Kamal Sadiq's Paper Citizens published by Oxford Univ Press (Chapter 5: Voters Across Borders, pp. 139–169, first 10 pages give the feel). Ms Sarah Welch (talk) 03:13, 5 January 2020 (UTC)

Comment

@Kautilya3: I like the expansion you have done today. With this edit, you have added some commentary before each clause of the 2003 Amendment. Please consider the commentary, "Section 6 (citizenship by naturalisation) was amended prohibiting illegal migrants from getting naturalised" in light of the following:

1. See this source. It provides the unofficial amendments-consolidated version of India's Citizenship Act, 1955 as it stood on 10 December 1992.
2. In this 1992 version, please look at Section 6: Citizenship by naturalisation. It reads, "who is not a citizen of a country specified in the First Schedule for the grant of a certificate of naturalisation to him" (something you have clearly noted and we have discussed before).
3. Per 1992 version, therefore, no one, neither legal nor illegal migrants, from any of the 11 countries in the First Schedule – which included Pakistan – was allowed citizenship by naturalization in 1992 (or anytime before 2003). In other words, no one from Pakistan and 10 other countries could apply under Section 6.
4. Per 1992 version, Section 6A covered Assam Accord and all (legal/illegal) migrants from Bangladesh.
5. The 2003 version, which you have linked in this article (and the talk page above), defined illegal migrant AND stated that "in sub-section (1), for the words "who is not a citizen of a country specified in the First Schedule", the words "not being an illegal migrant" shall be substituted". [my emphasis]
6. With that substitution, all illegal migrants from any country – including the 11 in the old First Schedule – were barred from using Section 6
7. With that substitution, all legal migrants including those previously excluded 11 countries could use Section 6 after 2004 (this is significant for those previously excluded from Pakistan); for illegal migrants from those 11 countries the 2003 amendment changed nothing

I hope the above clarifies that:

• the 2003 amendment relaxed – rather than restrict – migration from Pakistan and 10 other countries.
• the 2003 amendment is similar to 1992 version as far as Bangladesh is concerned.
• the 2003 amendment restricted illegal migrants from all countries other than the 11 countries in the old First Schedule.

Also note that Section 6 does not overrule Section 13: Certificate of citizenship in case of doubt. Ms Sarah Welch (talk) 20:56, 3 January 2020 (UTC)

Hi Sarah, you seem to have missed the point that the people of "undivided India" (which include present day Pakistan and Bangladesh) can get citizenship by registration. They don't need naturalisation. In the link you provided (the 1992 version of the Act), registration required 5 years of residency. Naturalisation required 10 years of residency.

In the 1992 version, Commonwealth citizens could also get citizenship by registration. The 2003 Amendment removed it. So, now Commonwealth citizens are being treated the same way as other foreigners. -- Kautilya3 (talk) 21:45, 3 January 2020 (UTC)

@Kautilya3: On Section 5: Citizenship by registration, you are right of course. Do note though that 5(1)a and 5(1)b limit that undivided Indian origin applies only to those born before August 1947, or whose mother or father was born before that date therein. That still leaves any migrant/refugee from Pakistan or Bangladesh who fits neither 5(1)a or 5(1)b. Section 6A seems quite broad. Wouldn't the 2003 amendment affect only those refugees/migrants who had not applied or whose citizenship had not been approved under Section 5, 6, etc by 2003? Ms Sarah Welch (talk) 22:38, 3 January 2020 (UTC)

No, there is no August 1947 mentioned anywhere. See the footnote [a] for "undivided India".

I can't see anything broad in 6A. It applies to "Indian origin" people that came to Assam. Whether it is constitutional hasn't yet been settled. The Supreme Court has been sitting on it. If the BJP decides that it will apply 1951 as the cut-off date for the rest of India, then all hell will break loose.

As to whether 2003 amendment would have only applied to new applicants, that is how it would be normally done. I haven't seen anything that suggests otherwise. -- Kautilya3 (talk) 23:42, 3 January 2020 (UTC)

Yes, (h) "undivided India" means India as defined in the Government of India Act, 1935, as originally enacted. Ms Sarah Welch (talk) 00:01, 4 January 2020 (UTC)