Indian Citizenship Law a Mess, Proving Citizenship Even Messier

MD TASNIMUL HASSAN seeks to bring clarity on the documentary proof of Indian citizenship. He raises—and attempts to answer—the question: what is the legal position of identification cards or other documents in proving or disproving an individual’s citizenship.

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Lya Somin, professor of law at George Mason University, United States, says immigration is not a zero-sum game between migrants and natives. Contrarily, freedom of movement is a boon for both the migrant and the native.

In this context, imagine an immigrant to India who marries an Indian and secures documentary identity proof over years of continuous residence here. What if this immigrant, who is not a citizen under Indian law, is elected as a village head?

This is what happened to a woman, allegedly from Pakistan, who became a village head in Uttar Pradesh. She claimed she was born in India. Another woman, of Nepalese origin, was caught in a similar situation in Bihar.

In the latter case, the Patna High Court held that a foreign national does not automatically become an Indian citizen on marrying an Indian or owning a Permanent Account Number, Aadhaar card, or voter identity card. In the Uttar Pradesh case, the woman was arrested and a similar ruling is expected.

While the law on citizenship is a mess, providing documentary proof of being a citizen is an even messier affair in India. For one, government officials claim that Aadhaar cards, voter IDs, and passports are not proof of citizenship, while the Union Home Ministry has said that “a lot of common documents” are good enough to prove citizenship. Therein lies the conundrum of citizenship. There are significant divergences in judicial interpretations of what constitutes valid proof of citizenship as well, which further confounds the issue.

The Legal Basis of Citizenship

The Citizenship Act, 1955, provides for six different methods to acquire Indian citizenship: by birth (section 3), by descent (section 4), by registration (section 5), by naturalisation (section 6), persons covered by the Assam Accord (section 6A), and by incorporation of territory (section 7). Under section 5(1)(c), a person married to a citizen of India and ordinarily residing in India for at least seven years has the “option” to apply to register as an Indian citizen.

There are significant divergences in judicial interpretations of what constitutes valid proof of citizenship. The Delhi High Court has said that a passport is a valid document. However, the Bombay High Court held in 2013 that a passport alone is no proof of citizenship. Another Mumbai court held in 2019 that a passport is sufficient proof of citizenship. 

In National Human Rights Commission vs State of Arunachal Pradesh (1996), the Supreme Court clarified that a person can be registered as a citizen of India only if the requirements of section 5 are satisfied. Further, the Apex Court, in Sarbananda Sonowal vs Union of India (2005), laid down the principle that the burden of proof is on the claimant, for they would possess the documents required to show they are citizens, within the meaning of the Constitution and under the Act.

Women protesters against CAA at Shaheen Bagh in January 2020. Source: AP/ Alraf Quadri

This brings us to the question: what is the legal position of the identification cards or other documents when it comes to proving or disproving an individual’s citizenship using them.

Documentary evidence of citizenship

Article 326 of the Constitution gives every citizen the right to vote in Lok Sabha and State Assembly elections, which is done through the voter ID. However, a voter ID is issued merely based on self-declaration by the applicant via Form 6 under Rules 13(1) and 26 of the Registration of Electors Rules, 1960.

The Representation of People Act, 1950, also debars non-citizens from being included in the voter list. The apex court ruled in Bhanwaroo Khan and Ors. vs Union of India and Ors. (2002) that, “Long stay in the country and enrolment in the voters’ list would not confer any right to an alien to continue to stay in the country.”

The Gauhati High Court in Munindra Biswas v. Union of India and Ors. (2020), while reaffirming its previous ruling in Md. Babul Islam v. the State of Assam held that the “Electoral Photo Identity Card is not a proof of citizenship.” However, a Mumbai court ruled that the voter identity card is sufficient proof of citizenship.

So, what if a foreigner in possession of a voter ID casts a vote? The person would be voting without being a citizen, negating Article 326, which is worrying.

The Aadhaar card issued under Aadhaar Act, 2016 touched the 125 crore mark even though there exist many grave privacy concerns. The eligibility criteria to obtain it is residency in India for at least 182 days, and not citizenship.

Earlier this year, the Supreme Court by a 4-1 majority, while dismissing review petitions, affirmed the verdict in Justice KS Puttaswamy (Retd.) and Anr. vs Union of India and Ors. (2017), where it had upheld the biometric identity system and cleared mandatory Aadhaar enrolment to avail government welfare benefits.

Justice DY Chandrachud dissented from the majority, who had earlier dissented and regarded the enactment of the Aadhaar Act as “a fraud on the Constitution”. As citizenship itself does not imply that an Aadhaar card has not been fraudulently obtained. Thus, acting on a complaint, the Aadhaar issuing authority UIDAI, arbitrarily ordered several individuals to prove that their stay in India is legally valid.

Section 139A of the Income Tax Act, 1961, read with Rule 114 of the Income Tax Rules, 1962, deals with the requirement of the application and obtaining of PAN. In Binoy Viswam vs Union of India and Ors. (2017), the Apex Court validated Section 139AA, which provides for mandatory quoting of the Aadhaar number, for filing an income tax return, and for applying for allotment of PAN.

Also, citizenship is not a condition for having a bank account in India. Since, to open a bank account in India, one needs to submit a set of documents regarded as “proof of identity and proof of address.” The Gauhati High Court in Jabeda Begum @ Jabeda Khatun v. Union of India & Ors. (2019), reiterated the position in Md. Babul Islam to hold that PAN and bank documents are not proofs of citizenship.

The Registration Act, 1908, provides for the transfer of property among individuals. Section 17 of this law only requires that the document by which property is transferred should be compulsorily registered. Therefore, names in the register are proof of ownership and not of one’s citizenship. In Jabeda Begum, the court held that even land revenue payment receipts do not prove citizenship.

The New Oxford Companion to Law says that a passport is a “basic identity document accepted as valid for crossing international borders.” The Delhi High Court quoted its previous ruling, that a passport is a “document evidencing a citizen’s nationality and cannot be ignored on mere suspicions,” while allowing the petitioner to be given passport services without being questioned about her nationality.

However, the Bombay High Court in 2013 held that a passport alone is no proof of citizenship, whereas another Mumbai court held in 2019 that a passport is sufficient proof of citizenship.

So, a valid passport is considered proof of citizenship in the United States, but an Indian passport holder is considered an Indian citizen overseas and may not be considered a citizen within India.

Last but not the least, the government claims that birth certificates are citizenship proof, but 14 per cent of the 166 million unregistered children live in India, and the birth registration stood at 89.3 percent in 2018. So then what exactly is proof of citizenship?

These terrible conditions are what make the procedure of the National Register of Citizens (NRC) inherently dangerous and arbitrary.

The danger that is NRC

Section 2 of the Foreigners Act, 1946 defines a “foreigner” to mean “a person who is not a citizen of India,” while section 9 places the burden of proof on the person suspected to be a foreigner, to provide documentary evidence against their claim of citizenship. A non-obstante clause, section 6A was inserted considering the Assam Accord of 1985, which sets the cut-off for citizenship on 24 March 1971. Those who entered Assam after this deadline are considered foreigners.

A valid passport is considered proof of citizenship in the United States, but an Indian passport holder is considered an Indian citizen overseas but may not be considered a citizen within India. 

The United Nations World Migration Report, 2020, recognised Assam’s border as one of the most vulnerable migrant corridors in Asia, provided its historical fluidity. Thus, the NRC is an exercise to drive out illegal migrants or “termites” under section 14A of the Act read with the Foreigners Act. The NRC was implemented in Assam and after the screening of documents for five years for $178 million, which rendered nearly two million people stateless.

Every Assamese was required to prove their citizenship by providing legacy documents, that were categorised as List-A (pre-1971 documents that mark the presence of the person in Assam) and List B (to establish linkage with a family member having a List-A document). Those excluded can appeal to the Foreigners Tribunals, a quasi-judicial authority, thereby meaning that the State treats them as foreigners already.

In Jabeda Begum, the petitioner submitted 15 different documents, but the court held that the “petitioner failed to prove her linkage with her projected parents and her projected brother.”

In a similar case, Nur Begum submitted eight documents, however, the Gauhati High Court ruled that “all certificates rendered itself as inadmissible in evidence, inasmuch as the authors were not examined to prove the certificates and the contents thereof.”

However, analysis reveals, “the original author of the document is not required to be present in court to prove a document and its contents. The proof of the truth of the contents of a document can be proved by any person who can vouchsafe for the truthfulness of those facts.”

The Gauhati High Court held in 2020 that the ‘Electoral Photo Identity Card is not a proof of citizenship’. However, a Mumbai court ruled that the voter identity card is sufficient proof of citizenship. So, what if a foreigner with a voter ID card casts their vote? The person would be voting without being a citizen, negating Article 326, which is worrying.

The procedure of NRC, once an individual is excluded, considers every resident of Assam guilty until proven innocent. In clear violation of the idea of jus soli, those born in India after 3 December 2004 cannot secure Indian citizenship unless one of their parents is an Indian citizen and the other is not an illegal migrant (in light of section 3(1)(c) of the Act).

Even to the children of undocumented immigrants and visa holders born in the United States, the Fourteenth Amendment gives birthright citizenship. Therefore, due to the exclusionary and labyrinthine NRC procedure, which comes with the potential to create statelessness, proving citizenship is perhaps tougher than death.

What does it mean to be stateless?

Hannah Arendt wrote in The Origins of Totalitarianism that a new group of people, the heimatlosen or stateless, emerged from the war. She believed that the universalism of human rights could only be achieved through citizenship, and described the dilemma of refugees turning from homeless to stateless and ultimately, rightless. India, through the Citizenship (Amendment) Act, 2019, seeks to grant asylum to persecuted refugees, but has applied differential doctrine over them and failed to go beyond political stunts.

The Convention Relating to the Status of Stateless Persons, 1954 and the Convention on the Reduction of Statelessness, 1961, are the two leading multilateral treaties against statelessness. While India is not a signatory to them, the duty to prevent statelessness has been consolidated in several other international legal instruments to which India is a party. This includes Article 15 of the Universal Declaration of Human Rights, 1948, which states: “(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

Article 5 of the International Convention on Elimination of All Forms of Racial Discrimination, 1965, obliges the parties to guarantee the right of everyone, without distinction as to race, colour, national or ethnic origin, in the enjoyment of the right to participate in elections and the right to nationality, among many others.

 Article 9 of the Convention on Elimination of All Forms of Discrimination Against Wo men, 1979, states that “neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.”

Hannah Arendt believed that universal human rights could only be achieved through citizenship, and explored the dilemma of refugees, who were turned from homeless to stateless and ultimately, rightless. India, through the CAA, seeks to grant asylum to persecuted refugees, but has applied differential doctrines over them and failed to go beyond political stunts.

In this context, what would be the remedy available to the foreigners in question? Firstly, they cannot be said to be Indian citizens, and they have also repudiated their respective original citizenships. Thus, they need to apply for citizenship in compliance with section 5(1)(c) of the Act.

Secondly, they will have to face the “cumbersome bureaucracy” as the documents to be attached for the said application vide Form III under Rule 5(1)(a) of the Citizenship Rules, 2009, include a copy of a valid foreign passport, a copy of the valid residential permit and evidence of his/her husband’s/wife’s Indian nationality viz. copy of Indian passport or birth certificate, among others.

However, to obtain these, they will have to “reside” in their original homeland, which is practically impossible, given that their family is residing in India. Interestingly, the passport and the birth certificate of the foreigner’s husband/wife would be considered proof of citizenship. Yet again, the conundrum of Indian citizenship.

(Tasnimul is a law student at Jamia Millia Islamia, Delhi. He is a part of the South Asia Students For Liberty’s Fellowship For Freedom in India, and a Student Volunteer at Parichay – The NRC Legal Aid Clinic. The views expressed are personal.)