Open Secret of the Term Illegal Migrants and Its Manifest Dangers on Citizenship in India

Saifuddin Patel

 

Abstract: Citizenship, in its conceptualisation as well as positioning in the Indian Constitution, is a precursor and guarantee to all fundamental rights. The Partition not only created two nations but also provided two distinct lenses to view citizenship. The differentiation is evident in the Constitution's functioning, treating Hindus as refugees in the interpretation of Art. 6 and Muslims as migrants in Art. 7. Further, ‘Illegal migrants’ from eastern borders (Bangladesh to Assam) were treated differently from ‘migrant Hindus having Pakistani passports’ who came from the western borders of India. The Citizenship Amendment Act, 2004, provided that a child born in India will be excluded from citizenship if, at the time of their birth, any one parent is an ‘illegal migrant’, strategically exempting the ‘refugees’, i.e., the de facto non-Muslims. The obfuscating term ‘illegal migrants’ reappeared in the Citizenship Amendment Act, 2019, referring to Muslims again, while non-Muslim refugees have been given a blanket exemption. Apropos, this paper argues that the law projects two manifest dangers. One, illegal migration is no longer an issue specific to one state. Any person in India may be categorised as an illegal migrant (primarily based on their religious identity) and made vulnerable to the grievous consequences of deportation or statelessness. Second, as Citizenship Rules suggest, no one document is proof of Indian citizenship. One may be declared an illegal migrant despite having both factum and intention to stay in India, jeopardising not just their citizenship and rights but also those of the forthcoming generations.