The way forward for determining citizenship

Not only civil society organisations even officialdom is now openly resisting the special intensive revision (SIR) of electoral rolls. An assistant electoral registration officer in Howrah district of West Bengal has resigned in protest against the faulty procedures related to logical discrepancies found in enumeration forms of voters. “As a responsible citizen, I think this kind of logical discrepancies does not make any sense… Therefore, I want to tender my resignation from the post of AERO so that I would have the consolation that I have not betrayed my countrymen and nation consciously,” she said as a reason for her resignation.

Activist Anjali Bhardwaj, in a Right to Information application, had asked the Election Commission for details of the file in which the decision to conduct the SIR was taken. In his reply, the Principal Secretary in the EC informed her that “the decision was not taken by the Commission”. Ms. Bhardwaj says that his reply is evidence that “no files exist on how decision to undertake nation-wide Special Intensive Revision (SIR) was processed and approved by ECI!” So, what was the basis for the EC to start the nationwide SIR?

The SIR has heralded a “descent into farce” (as an editorial in The Hindu put it). It is fast making the EC a laughing stock but the blow it is delivering to the very electoral system, the foundation of democracy, is nothing short of tragic. What is needed is a massive citizens’ movement to demand a stop to the SIR and overhaul of the entire system of preparing electoral rolls and determining citizenship.

The farcical SIR — as evidenced by the gross errors on the final electoral rolls of Bihar despite the SIR, the demands for retrospective documents to determine eligibility of voters, the flawed procedures for registering voters, and the discriminatory provisions for defining citizenship — makes a complete overhaul of the system imperative.

If identifying illegal immigrants is the main aim of the SIR, it is pertinent to note that the Task Force on Border Management quoted the figure of 15 million illegal migrants in 2001. In 2004, the United Progressive Alliance government said in Parliament that there were 12 million illegal Bangladeshi migrants in India. But 12 or 15 million illegal migrants constitute a mere 1% of the 140 crore population of India. The country has been a refuge for migrants from neighbouring countries for centuries. There is a civilisational history of this land accepting and assimilating them out of compassion, as in the case of Jews, Tibetans, and Sri Lankan Tamils.

If the state failed to identify the 1% illegal immigrants while they entered, the effort to identify them now should not end up disenfranchising genuine citizens. There is a need for following an age-old principle of the justice system — it is better to let the guilty go free than to punish an innocent — in deciding citizenship. India remains one of the few major refugee-hosting nations that has neither signed the 1951 UN Convention relating to the Status of Refugees nor its 1967 Protocol. Hence, there is a case for assimilating as citizens the 1% who may be illegal immigrants, in line with our historically generous humanitarian tradition and to honour the UN Convention on Refugees.

Tough hurdles

The Citizenship Amendment Acts (CAAs) of 1986 and 2004, the basis of the SIR, place great hurdles before eligible citizens in proving their citizenship by having to produce retrospective documents which most do not have. These amendments to the CAA raise deeper questions: a blog on the ApniLaw website poses the following questions on the CAAs of 1987, 2004 and 2019: “Should citizenship be inclusive and expansive, or restrictive and protective? Should humanitarian concerns outweigh fears of demographic change? And how should India balance its constitutional principles of equality with real-world political pressures?”

This calls for an alternative. All the above lacunae and hurdles call for a fresh amendment to the Citizenship Act to remove the discriminatory provisions being used in the current SIR to identify supposed infiltrators. The arbitrary and retrospective distinctions made between citizens who were born before 1987 and those born later than 1987 should be removed through amendments to the Citizenship Acts of 1987 and 2004. These conditionalities can be questioned as discriminatory and violative of Article 14 (‘equality before law’).

Given the current circumstances when there is no satisfactory means of proving a voter’s citizenship retrospectively, and millions of citizens are getting excluded as a result, the need is to identify what should be the prospective exercise for ensuring that no genuine citizen gets excluded from the electoral roll or from citizenship. It needs to be considered whether to fulfil the principle of universal suffrage. A fresh Amendment to the Citizenship Act needs to be thought of in 2026, stating that all those who are currently resident in India, or have been residents of India, say for two or three years, will be accorded citizenship in 2026 through naturalisation. This, unless they have been officially declared foreigners or non-citizens under any statute.

The above measure will reduce the chances of disenfranchisement of genuine citizens to a minimum. This will ensure that “India’s historically generous humanitarian tradition” translates into legally enforceable protections.

The writer is the Executive Trustee of CIVIC-Bangalore and a Karnataka State Coordinator of the Association for Democratic Reforms (ADR). Views expressed are personal