By Filzah Belal
Filzah Belal is a final year undergraduate law student at National Law University and Judicial Academy, Assam.
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’. 
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.  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. 
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.
Photo Credit: Zee News