STATELESSNESS IN INDIA II. Discrimination in Law (A) Brief history of citizenship law in India The history of citizenship and immigration laws in India is deeply entrenched in the subcontinent’s colonial past – in fact both the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 are colonial legislations. The Constitution recognised as Indian citizens all those who were born in India or those with at least one parent born in India or who had been ordinary residents of India for 5 years prior to 26 January 1950.6 While Articles 5 to 9 address citizenship, Articles 10 and 11 confer Parliament with the right to make laws to determine the eligibility to citizenship in India. Article 14 provides for equality before law and equal protection of the law; Article 21 protects the life and liberty of every person; and Article 25 guarantees the freedom to practise, profess and propagate religion. The protection of these provisions is not limited to citizens.7 The Citizenship Act, 1955, governs citizenship post-1950 along with the Foreigners Act, 1946.8 The Citizenship Act has been amended in 19859, 198610, 200311, 2015, and most recently in 2019 through the controversial Citizenship Amendment Act (“CAA”). The 2003 amendment introduced the concept of an “illegal migrant” as a foreigner who entered India illegally,12 and could not obtain citizenship through naturalization, unlike a legal migrant who could naturalise after 11 years of ordinary residence in India.13 The Foreigners Order, 1948 and the Passport (Entry into India) Rules, 1950 were amended in 2015 to allow “illegal migrants” from Pakistan, Afghanistan, and Bangladesh to obtain naturalization provided they were non-Muslims seeking shelter in India from 6 Article 5, Constitution of India,1950. Indra Sawhney Etc. V. Union of India & Others, AIR 1993 SC 477. 8 Citizenship Act, 1955, Annexure E; The Foreigners Act, 1946, Annexure B 9 This amendment incorporates Section 6A providing protection to pre-1971 migrants living in Assam. 10 By this amendment, those born in India prior to 1 July 1987 were citizens by birth but those born on or after 1 July 1987 were to additionally prove that at least one parent was a citizen of India. 11 By this amendment, those born in India after 30 December 2004 had to further demonstrate that the other parent was not an illegal immigrant. Further, an “illegal migrant” could no longer seek citizenship by registration or nautralization; Also see: http://egazette.nic.in/WriteReadData/2004/E_1031_2011_005.pdf. 12 Section 2(1)(b), Citizenship Act, 1955, Annexure E. 13 Section 6(1), Citizenship Act, 1955, Annexure E. 7 2