Who is a citizen? The great Greek political philosopher and polymath Aristotle raised the question for the first time. He answered it by affirming that a citizen is a person who has the power to take part in the deliberative or judicial administration of any State. The concept of citizenship has again assumed significance in political and legal circles, with the Centre notifying Citizenship (Amendment) Rules, 2024, intended to bring into force the Citizenship(Amendment) Act, 2019. Since the amendment has come into force and so long as it survives, States cannot refuse to cooperate with the Union for the due implementation of the law made by the Parliament. Articles 256 and 257 of the Constitution obligate the executive power of the States to be exercised to ensure compliance with the regulations made by Parliament and without impeding or prejudicing the exercise of the executive power of the Union.

Issues relating to citizenship and the acquisition and conferment of citizenship by a legal system on aliens have always been debatable and have sparked controversies and confusion. The Code of Hammurabi (1750 BC) talked of patricians, plebeians, and slaves. Similarly, Aristotle's Politics (340 BC) spoke of citizens, aliens, and slaves. Kautilya's Arthashastra mentioned the Aryans of the four varnas and non-Aryans of various categories.

Constitutional Interpretations

In Constitutional law, a citizen of a State means a person who enjoys full civil and political rights, whereas aliens do not enjoy all these rights. Citizenship expressly carries with it certain rewards in the form of constitutional advantages. Under our constitutional scheme, fundamental rights enumerated in Articles 15, 16, 19, 29 and 30 are available only to citizens. Certain constitutional offices can be occupied only by a citizen, such as the office of the President, Vice-President, Judges of the Supreme Court and High Courts, Governor, Attorney-General, Advocate General, Election Commission, Public Service Commission, Comptroller and Auditor General, etc. The right to vote for election to the Lok Sabha and State Legislative Assembly is available only to citizens, and only a citizen can contest an election and be elected as a member of the Union or State Legislature or become part of the Union or State Executive. However, quite differently, the fundamental rights Articles 14 and 21 guarantee are also available to aliens.

Mother of Civilization

India has a unique and inherent antiquity. It has a tradition as a civilisation, and its boundaries have varied and grown with the fortunes of empires. It is the cradle of the human race, the birthplace of human speech, the mother of traditions, the grandmother of legacy and the great-grandmother of diversities. The freedom movement and its outcome in August 1947 led to its transition to the present glorified status as a Nation-State in the modern sense. Together with this, India owes a civilisational duty to protect those who are persecuted and oppressed in the neighbourhood. However, the choice of the neighbouring countries, the basis for the conferment of protection and benefit and the methods employed for the realisation of the goal must satisfy the constitutional standards of reasonableness, fairness and non-arbitrariness.

When the Constituent Assembly commenced its work in December 1946, initially, it based its approach on a Single Citizenship concept for the Union of India. Very soon, the partition and the large-scale violence that followed and the consequent misplacement of multitudes drew the attention of the Constituent Assembly to its implications, and resultantly, their issue was also intensely debated in the Constituent Assembly discussions on citizenship. The Constitution of India, thus adopted, enacted and given to us by 'We the People of India' on November 26, 1949, enunciated in its Preamble the guiding principles of our commitment as a nation and the core constitutional values. The opening phrase in the Preamble, 'We the People', no doubt proclaims the identities and groups embedded therein. This national identity was spelt out by the concept of citizenship through the circles of inclusion and exclusion.

In any legal system, particularly in international practice, citizenship of a modern State is determined on the basis of the twin principles; jus soli (by birth) and jus sanguinis (blood-based descent). But, as years have passed, rules governing citizenship have diluted the applicability of these recognised legal principles by incorporating provisions for the acquisition of citizenship by marriage and naturalisation.

Citizenship Jurisprudence-Genesis

Though initially, our country has chosen the jus soli principles in matters of citizenship, later, with the country's emergence as a substantial political entity, the Constitution of India adopted a secular jus soli conception of citizenship. This is clear from Articles 5 to 7 of the Indian Constitution. Article 5 of the Constitution speaks about citizenship at the time of the commencement of the Constitution. In contrast, Articles 6 and 7 dealt with the citizenship rights of persons who migrated to India from Pakistan and migrants to Pakistan. Thus, while Article 5 was an enunciation of citizenship for ordinary times, Articles 6 and 7 articulated citizenship for extraordinary times.

The Constitution of India, under Part II, prescribed the citizenship status at its commencement by Article 5 and left it to the domain of Parliament to legislate under Article 11 on matters regulating the right of citizenship in future. Citizenship, naturalisation and aliens are legislative subjects under Entry 17 of List I-Union List. By the power derived from Article 11, the Parliament enacted the Citizenship Act of 1955 (Act 57 of 1955), which contains salient provisions relating to the acquisition, deprivation and termination of citizenship. The Act envisaged five processes by which citizenship could be acquired: birth, descent, registration, naturalisation, and incorporation of territory. A sixth type was added in August 1985 based on the Assam Accord that envisaged special provisions regarding citizenship concerning persons covered by the Assam Accord. It thus granted citizenship to all persons of Indian origin who came before January 1, 1966, to Assam from the specified territory and who have been ordinarily resident in Assam since their entry. The Citizenship Act has defined 'illegal migrant' in Section 2(1)(b). The whole legislative scheme indicates an effort on the part of the country to use citizenship as a tool to construct a uniform pan-Indian identity.

Changing Trends 

The problem of the unabated influx of illegal migrants leads to perceptible changes in the demographic pattern. The situation in Assam, which was consequent to the massive wave of immigration from Bangladesh, had impacted the demographic structure of the state. The IMBT (Illegal Migrants Determination by Tribunal) Act, 1983, provided for the detection and expulsion of illegal immigrants, and the Act aimed to check unrest in sections of the public. Illegal migrant was defined in Section 3(1)(c) of the Act as a person who is a foreigner and has entered India on or after March 25, 1971, without having a valid passport or other travel documents or any other lawful authority on this behalf. However, the Act achieved very little, and finally, it was struck down by the Apex Court in 2005 as being discriminatory and wholly unconstitutional in Sarbananda Sonowal vs Union of India.

The concept of 'Overseas Citizens of India' in a limited form with limited rights and to specific countries was introduced by the Citizenship (Amendment) Act, 2004. It invited criticism of class bias in favour of recent migrants to developed countries. To meet the criticism, a further amendment was brought in 2005 to extend the facility of OCI to all overseas Indians who migrated from India after January 26, 1950, instead of restricting it to persons of 16 countries mentioned in the 2004 Amendment, of course, subject to the condition that their countries allowed it under their laws.

Israel's Law of Return

Modelled closely on Israel's law of return for the Jewish people that worked on the premise that every Jew has the right to come back to the home country as Oleh (an immigrant), the Citizenship (Amendment) Act, 2019 (Act 47 of 2019) was enacted to provide for the acquisition of Indian Citizenship by specific categories of illegal immigrants, namely, persons belonging to minority communities such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan and to amend the residence requirements in respect of these categories from 11 years to 5 years. The amendment does not intend to affect any citizen's Indian citizenship status.

Objections to the Amendment

The main objection raised against the 2019 Amendment is that it makes illegal migrants eligible for citizenship based on religion and that it discriminates against members of one religion from acquiring Indian Citizenship, though they might have also faced similar persecution in these neighbouring countries. According to the critics, this violates the constitutional guarantee under Article 14 of the Constitution, which guarantees the right to equality available to citizens and non-citizens and violates the basic structure of the Constitution, namely, Secularism. Secularism was declared as the basic structure of the Constitution by the Supreme Court in SR Bommai, Ismail Faruqui and Aruna Roy cases. The expression 'person' appearing in Articles 14 and 21 of the Constitution was interpreted by the Supreme Court as evidently referring to "human beings" in the National Legal Services Authority case (2014).

Religious persecution could indeed be grounds for intelligible differentiation and reasonable classification. However, it should have a logical and rational nexus with the object sought to be achieved. If not, the classification becomes invalid. Equally important is that classification shall not take or assume the form of class legislation. Classification envisaged in the legislation cannot be stretched and rationalised to such an extent as to dilute the secular foundation of citizenship in India and the core principles of constitutional morality. The selection of the neighbouring countries by the Amendment Act is also taken up as a ground to challenge the legislation. There are other neighbouring countries, such as Sri Lanka, China, Burma and Myanmar, which have also witnessed instances of religious persecution and oppression. If religious persecution is the direct, real and substantial ground for differentiation, it is pointed out that the justifying reason for leaving out the persecuted minorities in other neighbouring countries may also have to be considered. The claims of the persecuted Hindus and Rohingya Muslims in Myanmar, persecuted Hindu and Christian Tamils in Sri Lanka, persecuted Rohingyas in Myanmar, and the persecuted Uighur Muslims in China cannot be ignored. Though one may be tempted to say that these are just 'political questions' falling outside the purview of judicial review, they still cannot escape judicial scrutiny.

Equality as 'Protection against Arbitrariness'

The 'equal protection of laws' clause guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character or that the same laws should apply to all persons. It also does not mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position. The varying needs of different classes of persons may differ and warrant separate treatment. Hence, a reasonable classification is not only constitutionally permitted but is also necessary to advance constitutional goals. However, the real question is whether the classification is reasonable or not and whether it transgresses constitutional principles and standards. For this, the direct and inevitable effect of the Amendment Act has to be principally considered and tested on the scales of fairness, reasonableness and non-arbitrariness. Courts have repeatedly reiterated that the classification envisaged in the legislation must not be arbitrary, artificial or evasive but must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature.

The new concept of equality evolved by the Supreme Court as protection against arbitrariness in the Royappa, Maneka Gandhi, RD Shetty, and DS Nakara cases has crowned Article 14 with an acclaimed status as the key constitutional parameter to check arbitrariness in State action. It has also placed the Judiciary as the only check-and-balance mechanism in our democratic polity to control constitutional transgressions. Every law should be reasonable. "Reasonableness" is the brooding omnipresence of our equality clause, and it is an independent test with its own substantive content.

The Constitution prohibits arbitrariness or unreasonable discrimination between one person and another. If there is no discrimination, there is no arbitrariness. The Apex Court in Shayara Bano (2017) recognised 'manifest arbitrariness' as grounds for invalidating a law made by the Parliament or State Legislature.

Over the years, the Supreme Court of India, as the protector of Fundamental Rights, has adopted a dynamic approach by expanding the scope and content of Articles 14 and 21 of the Constitution and, in that process, has transformed the constitutional jurisprudence based on fundamental principles of human dignity. The attempt displayed by the court was to 'wipe every tear from every eye', the sublime goal of justice. The court has recognised that every person has a unique objective value intrinsic to and essential to them, including the right to self-respect and personal dignity. As aptly described by Charles Bernard, a French philosopher, the Republic is a state that best reconciles the dignity of the individual with the dignity of everyone.

Need for a Principled Approach

India has not signed the 1951 UN Convention on Refugees and its 1967 Protocol. Instead, it has dealt with refugee problems on an ad-hoc basis. Consequently, it still remains a grey area without a principled approach. Thus, while jus soli remains the governing principle of citizenship in India, citizenship laws and jurisprudence have also embraced the elements of jus sanguinis. It may not be proper to treat illegal migrants and refugees as alike. However, the differential approaches adopted from time to time while addressing the issue of illegal migrants and refugees, whether they could be justified by the principles of constitutional morality, are for the court to consider. Until the problem is settled, citizenship jurisprudence will remain debatable, giving space for interpretations, resolutions, political gaining and Centre-State disputes.

As a civilised nation, India has a duty to protect those who are persecuted in the neighbouring countries. However, the methods employed by the legal system and the 'Limited Government' working under the Constitution should be constitutional and guided by the principles of constitutional morality. It should also satisfy the requirements of larger public interest and compelling state interest. As the guardian of the Constitution and as the protector of fundamental rights, the highest court must examine the constitutionality of the CAA by embarking on a delicate balancing between citizenship jurisprudence and principles of constitutional morality.