The Citizenship (Amendment Bill) 2016 vis-à-vis Article 371 (A) and BEFR 1873: An opinion

By Taka Masa Ao 

Senior Advocate & Ex MLA

The Article 11 of the Constitution of India empowers the Parliament to regulate the right of citizenship law. The Citizenship Act, 1955(Act No.57 of 1955), an Act to provide for the acquisition and termination of India citizenship, in 1955, in the exercise of the power preserved to the Parliament under Article 11 of the Constitution of India, the Citizenship Act, 1955, was passed by Parliament and it received the assent of the President on 30th December, 1955. This Act places on a firm ground the acquisition and termination of rights of citizenship in India. It provides five modes of acquiring citizenship; citizenship by birth, citizenship by descent, citizenship by registration, citizenship by naturalization and citizenship by incorporation of territory.

In exercise of the powers conferred by Section 18 of the Citizenship Act, 1955, the Central Government makes the Citizenship Rules, 1956. Article 245 of the Constitution is the sources of legislative power of Parliament and the State Legislatures The legislative field of Parliament and the State Legislatures has been specified in Article 246. Article 246 (I) provides that notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List –I in the Seventh Schedule of the Constitution. This well settled position of law has been reiterated by the Hon’ble Supreme Court in Central Bank of India Vs State of Kerala, (2009) 4 SCC 94.

Entry.17 of List I – Union List, of the Seventh Schedule (Article 246) of the Constitution of India provides, “ Citizenship, naturalization and aliens”. It clearly shows that the Parliament have exclusive power and jurisdiction over citizenship. Adopting an outsider as the son/daughter/citizen of a particular Naga village as per customs and tradition should not be confused and mixed up with India citizenship and which is beyond the purview of Naga customs and tradition.

The Citizenship (Amendment) Bill 2016(Bill No. 172 of 2016), was passed recently by the Lok Sabha in the last winter session of Parliament on 08-01-2019. It propose to amend the Third Schedule of the Act to make applicants belonging to minority communities, namely, Hindus, Jains, Christians, Sikhs, Buddhists from Bangladesh, Pakistan and Afghanistan who entered India before 31st December, 2014 eligible for citizenship of India by naturalization in not less than six years of residence in India, instead of not less than eleven years even if they do not possess any documents. If the Bill is passed by the Rajya Sabha and receives the assent of the President of India, it becomes a law.

This controversial Bill has triggered large scale protests across north eastern states including Nagaland. Some of the reasons for strongly opposing the Bill are; the proposed amendment Bill is totally against the very identity and survival of the indigenous people of the region as it shall totally change the demographic setup of the region, a foreigner is a foreigner, religion cannot be the basis on which section of foreigner can be granted citizenship, National Citizenship Register is being updated to detect illegal migrants, the Bill will not allow that to happen, the proposed amendment Bill is not secular but totally communal, the Bill is nothing but vote bank politics etc.

The Eastern Frontier Regulation, 1873 (The BEFR, 1873), commonly referred to as the Inner Line Regulation, was initially promulgated as a “Regulation for the peace and government of certain districts of the Eastern Frontiers of Bengal”. This Regulation since its enforcement through different notifications in different areas that comprise the present State of Nagaland, finds its inclusion as the 8th Point in the 9 –Point Agreement of June, 1947 and also in the 16th Point in the 16 –Point Agreement of July, 1960 between the Government of India and the Naga Peoples’ Convention.

The Regulation 2 provides that “ The ( State Government ) may , by notification in the (official Gazette), prohibit all (citizens of India or any class of such citizens) or any persons residing in passing through such districts from going beyond such line without a pass under the hand and seal of the chief executive officer of such district or of such other officer as he may authorize to grant such pass; and the (State Government) may, from time to time, cancel or vary such prohibition”.

Regulation 3 provides a punishment of imprisonment which may extend to one year or a fine not exceeding one thousand rupees or both. Piketo Sema, 1992, in his British Policy and Administration in Nagaland 1881-1947, he stated that the reason for enforcement of Inner Line Regulation (ILR) by the British Government was to serve dual purpose of protection of the tea gardens from Naga raids and the protection of the interests of the Nagas from the socio-political and economic exploitation of other.

The Foreigners Act, 1946 (Act XXXI of 1946), an Act to confer upon the Central Government certain powers in respect of foreigners. The preamble of the Act provides the Central Government of certain powers in respect of the entry of foreigners into India, their presence herein and their departure. Accordingly, the Central Government had been issuing Restricted Area Permit (RAP) to foreigners entering Nagaland, any violators to be arrested, imprisoned and deported. It clearly shows that ILR is for Indian citizens and the RAP for foreign nationals. The illegal Bangladeshis immigrants are foreigners and they are to be deported in accordance with The Foreigners Act, 1946.

The Hon’ble Supreme Court in Sarbananda Sonowal Vs UOI & another, (2005) 5 SCC 665 held that “ the presence of such large number of illegal migrants from Bangladesh, which runs into millions, in fact an aggression on the State of Assam…. The impact is such that it not only affects the State of Assam but it also affects its sister State like Arunachal Pradesh, Meghalaya, Nagaland, etc, as the route to the said places passes through the State of Assam”. The Hon’ble Supreme Court in Sarbananda Sonowal Vs UOI and another (II), (2007) 1 SCC 174 referring to the uncontrolled immigration into the North –Eastern States posing a threat to the integrity of the nation, lamented that there is a lack of political will on the part of the Central Government to proceed against the foreigners.

Hokishe Sema, 1986 in his Emergence of Nagaland: Socio –Economic and Political Transformation and the Future”, records “ the dangers faced by the neighboring State of Tripura and Assam where original inhabitants become minorities in a few decades….. social and political tensions which will definitely defeat the very good of economic development and grant of political status”. The prophetic message of our late leader unless taken seriously by the citizens of Nagaland, it shall became a reality in our state especially in Dimapur district.

The State of Nagaland is the only state in India which was granted statehood through a political agreement known as The Sixteen Point Agreement of 1960. Clause 7 of the agreement was inserted by the Constitution (Thirteenth Amendment) Act, 1962, with effect from 01-12-1963 famously known to all Nagas as Article 371 A. Special provision with respect to the State of Nagaland. Article 371A (1) starts with a non obstante clause; “Notwithstanding anything in this Constitution:-

(a) no Act of Parliament in respect of-

(i) religious or social practice of the Nagas’

(ii) Naga customary law and procedure’

(iii) administration of civil and criminal justice involving decisions according to Naga customary law,

(iv) ownership and transfer of land and resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides”;

A plain reading of Article 371A(1) (a)(i) to (iv) with special reference to the non obstante clause “Notwithstanding”, the stand of the Government of India through several legal interpretations is that Article 371A(1)(a) is a restrictive provision which puts restriction on the application of the law made by Parliament which relates to item (i) to (iv) under clause(1) (a) of Article 371A. Laws so made by Parliament dealing with any of the matter under Article 371A(1)(a) will have no application to the State of Nagaland unless so decided by the Nagaland Legislature.

It has been the stand of the Government of India that Article 245 is the source of power and Article 246 read with seventh Schedule provides the respective legislative fields upon which the Central Government and the State can operate. Whether Article 371A(1)(a) was meant to be a restriction of application of Laws of Parliament and not a source of Legislative Power of the State, it is an important delicate issue to be seriously deliberated between the Naga people and Government of India.

The State of Nagaland Act 1962, enacted by Parliament for the creation of the State of Nagaland.

“Section 26. Continuance of existing laws and their adaptation.-

(1) All laws in force, immediately before the appointed day, in the Naga Hills Tuensang Area shall continue to be in force in the State of Nagaland until altered, repealed or amended by a competent Legislature or other competent authority.

(2) For the purpose of facilitating the application in relation to the State of Nagaland of any law made before the appointed day, the appropriate Government may, within two years from that day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

Explanation– In this section, the expression “appropriate Government” means, as respects any law relating to a matter enumerated in the Union List in the Seventh Schedule to the Constitution, the Central Government; and as respects any other law, the Government of Nagaland.”

The BEFR 1873, The Foreigners Act, 1946, and The Citizenship Act, 1955, along with all the amendments over the years are Laws within the meaning of law in Article 13 of the Constitution. It was in force in erstwhile Naga Hills Tuensang Area, immediately before the 1st December, 1963. These are laws enacted by the Parliament prior to Nagaland statehood. Since it has not been altered, repealed or amended within two years since statehood as provided under Section.26 (2) of the State of Nagaland Act, 1962, it is applicable in the State of Nagaland.

It is opined that Article 371A (1) (a) shall be stretched too far to make a claim that Nagaland Legislative Assembly have the power under Article 371A to restrict the applicability of the Citizenship (Amendment Bill) 2016, as and when it became a law. Such a view may not pass the legal scrutiny of reasonableness since the Nagaland Legislative Assembly did not exercised its power as provided in Section 26 of the Act of 1962. To make a claim that Nagaland Legislative Assembly can still exercise even at this belated stage may create more problems than solving the problems since much water has been flowed in river Dikhu since statehood.

It is also important to remember that Article 371A comes with effect from 01-12-1963. The recent resolution of the State Cabinet to urge upon the Central Government to review the Citizenship (Amendment Bill) 2016, with due respect, it was a halfhearted approach and especially when the Bill is already passed by the Lok Sabha. Any piece meal solution shall be counterproductive at this crucial juncture. Also, to take shelter behind Article 371A and BEFR 1873 shall be self defeating.

The only permanent solution shall be total scrapping of the Bill. It is respectfully opined that summoning a special session of the Nagaland Legislative Assembly to discuss the Bill and an assembly resolution urging upon the Government of India to withdraw the Bill could be a way forward and which shall be an eye opener for other north eastern states. It is sincerely hope that our honorable elected representatives shall rise to the occasion by taking a bold and decisive decision showing statesmanship. This humble opinion is shared with a positive intention to facilitate a healthy discussion on the present burning issue faced by our people.