“Trust without trial and distrust of the tried          

Lead to endless trouble.”                – Thirukkural 510.

If the arrows should be right on target in the battlefield, clarity of demands is a must. We mean the field of struggle for the right to citizenship. As the problem arose with regard to the law, let us set out certain legal tenets.

The Preamble to the Constitution of India opens with the words “We, the people of India”. People of India or the peoples of India? Apart from this question, no doubt, sovereignty belongs to the people. We, the people of India, constitute ourselves into a Republic. What kind of Republic? SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC!

At the time of the adoption of the Constitution, it was only a Sovereign Democratic Republic. By the amendment adopted in 1976 during the Emergency, socialism and secularism were added. Let us, for the purpose of the consideration on hand, keep in mind only the secular character of the Indian Republic.

The Constitution of India, Article 1 says:

1. India that is Bharath shall be a Union of States.

The word ‘State’ in the Indian context is used to mean both province and regime. The word has both senses. The State as per social or political science consists of territory, citizens and government. All the three should be there to make a state. States in common parlance also mean countries or nations. Stateless is interpreted as without a country, and stateless people are people without a country. A separate state is normally a separate nation.

The State, in contrast with the principality, implies sovereignty. A principality or a tributary dependent on the empire and has no sovereignty. On the contrary, a state is independent and autonomous. It is sovereign. In a federal setup, a part of the sovereignty is vested in the federation. The United States of America is a well-known case in point.

A state is something more than a province which is nothing but an administrative unit, just an extended district. The Government of India Act of 1935 produced mere provinces. Only the Constitution of India of 1950 produced States.

The word State is used not only to denote the province-state, but also the Indian State depending on the context. The State of Tamilnadu is the Tamil province, but the Indian State is the all-Indian State headed by the Government of India. In the Supreme Court proceedings, both the State Government and the Government of India are referred to as the State.

So, State entails sovereignty, whether it is a regime or a country. The Indian Constitution has two kinds of states, namely the Indian Union and the states, both of which are sovereign. Each has exclusive sovereignty in some respects and shared sovereignty (shared between the Union and the States) in some other respects. Babasaheb Ambedkar has made this point very clear. He clarified that the States are sovereign as far as the powers in the State list of Schedule 7 are concerned.

Item No. 17 of the Union List reads: Citizenship, naturalization and aliens. This makes citizenship the exclusive domain of the Central Government called the Union Government. This is a violation of the States’ sovereignty and a breach of the principle of shared sovereignty of the Union and the States.

A State must have citizens and citizens must have a state. A state without citizens cannot at all be a state. If the State is a state just as the Union is, it should have citizenship. Citizenship is a sine qua non for a state, whether it is a province-state or a nation-state.

Jurists often cite the judgment of the Supreme Court of India in the Kesavanandha Bharathi case to say that federalism is one of the aspects of the basic structure of the Constitution. If so, citizenship should at least partly be a state power. It can exclusively be a power of the Central Government only in a unitary setup. If we compare India with the Unitary Sri Lanka, we find both are the same in this respect,

If one is stateless, it means he has no citizenship in any country. If one is without citizenship, it means he is stateless. Stateless means without citizenship and not being a citizen means to be stateless. If Tamilnadu is a state, there should be citizens of Tamilnadu. Citizens of Tamilnadu can at the same time be citizens of India as well. In accordance with the principle of shared sovereignty, citizenship can also be shared. It can be called dual citizenship.

Part II of the Constitution of India deals with citizenship. The seven articles from 5 to 7 are about citizenship. Article 5 deals with the general criteria of citizenship at the commencement of the Constitution. Articles 6 and 7 deal with emigrants from India to Pakistan and vice versa following the 1947 partition of India. Article 8 deals with non-resident Indians. Article 9 deals with those who willingly accept foreign citizenship, thereby losing their Indian citizenship. Article 10 deals with Indian residents retaining their citizenship subject to any law enacted by Parliament. The last one, Article 11, deals with the power of Parliament to enact laws to regulate citizenship.

So the Constitution of India, apart from those provisions dealing with the displacement of people between India and Pakistan, is silent on the rights of refugees which include the status and citizenship of refugees. Maybe, the architects of the Constitution did expect any emigration from or immigration into India in future after the Indo-Pakistan displacement!

Article 11 can be invoked to enact new laws to tackle whatever changes that may come up. But the big shortcoming is, the Constitution does not even indicate the values that should form the basis of such new laws.

The Indian Citizenship Act 1955 is a law enacted by Parliament invoking Article 11 of the Constitution of India. Even this law only deals with illegal immigrants and makes no mention of the refugees. As far as I know, there is no law in India to deal with refugees at all (I may be corrected if I am mistaken).

Since 1959 refugees have arrived in successive batches from Tibet. The Burma Bazaar in Chennai was set up for the Tamil refugees expelled by the military rulers of Burma since 1962. In the course of the genocide in Bangladesh in 1971, nearly ten million crossed into India as refugees and returned only after liberation. The other kind of refugees such as the Bihari Muslims who quit Bangladesh could not return to the country and went away to Pakistan itself. There are those who were expelled from Uganda. There are also Nepalese refugees and Bhutanese refugees.

Due to the violent assault on the Tamil people in Karnataka consequent upon the Cauvery conflict in 1991, a lot of Tamils came as refugees to Tamilnadu. There are quite a number of internal refugees in India, such as the tribal people expelled from Chhattisgarh and those displaced from Assam as a result of the ethnic strife.

A research can well be done in detail about refugees in India. Even though the Government of India has accepted some of them as proper refugees, no separate law has been enacted to look after the refugees in general.

The Citizenship Act, 1955, of course, has earlier been amended several times – 1986, 1992, 2003, 2005, but only this time around, it is facing so much opposition. Though the Amendment Act finally adopted on December 12 has six sections, the regulation which discriminates on the grounds of religion has caused the dispute. The old restriction that those from the neighboring countries of Pakistan, Bangladesh and Afghanistan must have resided in India for at least 11 years in India is being relaxed so that six years of residence is enough after this amendment act comes into force. But this concession applies only to Hindus, Sikhs, Buddhists, Jains, Pharisees and Christians, not to Muslims.

The first and foremost reason for opposition is that such a law discriminating on the grounds of religion is in conflict with secularism and that its ulterior Hindutva political motive to divide people on religious lines. The second reason is: even though Nepal, Bhutan and Sri Lanka are also neighboring countries they have not been covered by this Act. In particular, the Tamil refugees who have fled for their lives to India have been languishing here as stateless people for nearly forty years. They have not even been granted interim citizenship after so long years. The children of refugees who were born on this soil are in the same miserable situation. Leave alone citizenship, they have not even been recognized as refugees, and their legal status is that of aliens who have entered without valid documents.

The Government of India – earlier the Congress, now the BJP regime -- maintains that it is not bound by international law as it has neither signed the Geneva Convention on the Status of Refugees, 1951, nor the Protocol of 1967. But it is convenient for them to forget that India has signed the Universal Declaration of Human rights, 1948. The higher judiciary in India gives legal weight to this Declaration. Article 14 of this UDI asserts the right of everyone to seek and get asylum in other countries. The Supreme Court of India has also instructed the government to enact a law on the status of refugees on the basis of this Declaration. The Government of India is determined not to honor international law nor enact a domestic law dealing with the status of refugees. From the outset, it has been the practice of the Indian government to approach the problem of refugees from the perspective of its own geopolitical interest and domestic political interest. This practice is fraught with the worst consequences in the hands of Modi - Amit Shah.

Therefore the democratic forces resisting the Citizenship Amendment Act should not reach a stage of taking a position of defense and being satisfied with a withdrawal of the new law. Not stopping with the negative demand they should raise the positive demand for the power of States to citizenship. Offense is the best form of defense.

If the State, province-state or nation-state is true, let us demand state citizenship along with Indian citizenship. For instance, let India and Tamilnadu function as two states and grant dual citizenship. Let there be both Indian and Tamilnadu citizenship. If India would not agree to this and there can only be a single citizenship and not a dual one, this is bound to give rise to the feeling as to why not that single citizenship belongs exclusively to each nationality. Let there be Indian citizenship along with Tamil citizenship as long as the Indian structure lasts. But Indian citizenship sans Tamilnadu citizenship is nothing but slavery. It will not be able to serve the purposes of democracy.

From the negative demand of opposing the Citizenship Amendment Act we arrive at this positive demand: “We want Tamil Citizenship.”

- Thiagu (General-Secretary, Tamil National Liberation Movement) This email address is being protected from spambots. You need JavaScript enabled to view it.

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