Who Does Belong? An Essay on the Idea, Contradictions and Struggle over Citizenship and Belonging in India: Part-2

In the first part of this essay, we traced the historical evolution of the idea of citizenship in India, from the Constituent Assembly debates and constitutional provisions to successive amendments to the Citizenship Act. We saw how citizenship in India has always existed at the intersection of constitutional ideals, nation-building, migration and political contestation.

Yet the legal definition of citizenship tells only part of the story. Equally significant is the way the State determines who belongs, who is entitled to remain and who is treated as an outsider. These questions become especially difficult in a country shaped by Partition, repeated movements of refugees, porous borders, ethnic conflicts and regional anxieties over migration.

In recent decades, these issues have acquired unprecedented political significance. The National Register of Citizens (NRC), the Citizenship (Amendment) Act, the National Population Register (NPR), detention centres, allegations of illegal immigration and reports of summary "push-backs" have transformed citizenship from a legal status into one of the most contested political questions in contemporary India.

We examine these developments from constitutional, legal and historical perspectives. Rather than treating migration merely as a security issue, it raises a broader democratic question: how should a constitutional republic distinguish among citizens, migrants, refugees, and stateless persons while remaining faithful to the rule of law and fundamental rights?

Migration, Refugees and the Indian State

Independent India inherited one of the largest forced migrations in recorded history. Nearly 15 million people crossed the newly created borders of India and Pakistan during Partition. Unlike many modern refugee crises, however, these migrants were largely incorporated into the political communities of the successor states through constitutional and legislative mechanisms.

The following decades witnessed very different patterns of displacement and migration.

The Tibetan refugee influx beginning in 1959; migration from East Pakistan during communal violence in the 1960s; the arrival of nearly 10 million refugees during the Bangladesh Liberation War of 1971; Sri Lankan Tamils fleeing the civil war; Afghans escaping successive conflicts; and, more recently, Rohingya refugees fleeing persecution in Myanmar — each of these presented distinct legal, political and humanitarian challenges.

Refugees Without a Refugee Law

India has hosted millions of displaced people over the decades. Yet one remarkable feature of India’s refugee policy is the absence of a comprehensive refugee law. India is also not a party to the 1951 Refugee Convention or its 1967 Protocol.

Refugees are consequently dealt with through a patchwork of executive decisions, judicial interventions, ad hoc political arrangements and the general law governing foreigners. Until recently, that statutory framework rested substantially on the Foreigners Act, 1946, and the Passport (Entry into India) Act, 1920. Both were repealed, along with two related laws, by the Immigration and Foreigners Act, 2025, which came into force on 1 September 2025.

This system has allowed considerable flexibility, but it has also produced striking inconsistencies. Tibetan refugees have received institutional support over the past several decades. Sri Lankan Tamils have been accommodated in organised camps and provided welfare assistance. Many Afghan refugees have received UNHCR documentation. Rohingya refugees, by contrast, have increasingly been approached through the lens of national security.

The absence of a comprehensive refugee-protection framework means the nature and extent of protection available to different refugee groups remain heavily dependent on executive policy rather than on a uniform set of enforceable statutory rights.

Illegal Migration and the Politics of Assam

No discussion of Indian citizenship can ignore Assam.

Assam's Long Migration Question

The question of migration into Assam predates Independence. British colonial policies encouraged migration from Bengal into the Brahmaputra Valley, including for the cultivation of agricultural land. After Partition, and particularly after the creation of Bangladesh in 1971, anxieties over demographic changes intensified.

The Assam Movement (1979-1985), led primarily by the All Assam Students' Union (AASU), demanded the identification and deportation of illegal migrants.

The movement culminated in the Assam Accord of 1985. Its citizenship settlement, later reflected in Section 6A of the Citizenship Act, 1955, treated 24 March 1971 as the decisive cut-off date: persons entering Assam from the specified territory on or after 25 March 1971 were liable to be identified and dealt with under the law.

The Accord attempted to balance the humanitarian realities arising from the Bangladesh Liberation War with the concerns of indigenous Assamese communities regarding political representation, language and land rights.

Yet implementation proved enormously difficult.

The IMDT Act and Its Repeal

One of the most controversial legal instruments governing migration in Assam was the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act).

Unlike the then-applicable Foreigners Act, 1946, under which the burden of establishing that a person was not a foreigner generally fell on the person concerned, the IMDT Act placed a substantially greater burden on the complainant and the authorities to establish that an individual was an illegal migrant.

Supporters argued that this protected minorities from arbitrary harassment. Critics contended that it made the identification of illegal migrants practically impossible.

In Sarbananda Sonowal v. Union of India (2005), the Supreme Court struck down the IMDT Act. The Court held that the legislation had failed to address illegal migration effectively and treated large-scale undocumented migration into Assam as raising serious demographic and security concerns.

The judgment remains among the most influential and controversial citizenship decisions in Indian constitutional history. While many welcomed it as necessary for implementing the Assam Accord, others criticised its characterisation of large-scale migration as "external aggression", arguing that such language risked conflating humanitarian migration with national security threats.

NRC: Promise and Problems

The updating of the National Register of Citizens (NRC) in Assam was intended to implement the citizenship framework arising out of the Assam Accord.

After years of litigation under the supervision of the Supreme Court, the final NRC was published on 31 August 2019.

Nearly 1.9 million people were excluded from the final register.

When Citizenship Becomes Paperwork

Contrary to widespread assumptions, exclusion did not affect only Bengali-speaking Muslims. Hindus, Muslims, indigenous communities, tea-garden workers and members of numerous other groups found themselves outside the register, often because of difficulties in establishing the required documentary linkages.

Many individuals who had voted for decades, owned property, paid taxes or served in public institutions suddenly faced uncertainty over their legal status.

The NRC demonstrated the immense practical difficulties of documentary citizenship in a society marked by poverty, illiteracy, displacement and uneven administrative record-keeping.

Errors in electoral rolls, inconsistent name spellings, missing birth records, and intergenerational gaps in documentation became decisive factors in many people's lives.

The experience suggested that citizenship cannot be reduced solely to bureaucratic paperwork without risking grave injustice.

Foreigners Tribunals and Due Process

People excluded from the final NRC were given the right to challenge their exclusion before Foreigners Tribunals. Importantly, non-inclusion in the NRC did not by itself amount to a declaration that a person was a foreigner.

Foreigners Tribunals are quasi-judicial bodies that determine whether a person against whom proceedings are initiated under applicable law is a foreigner.

Civil society organisations, legal scholars and human rights groups have repeatedly raised concerns about inconsistent evidentiary standards, inadequate legal representation, heavy caseloads and procedural irregularities.

Because citizenship status directly affects political rights, residence, access to entitlements, and an individual's legal status security, decisions of such tribunals can have life-altering consequences.

The challenge is therefore not merely one of administrative efficiency, but of ensuring fairness, transparency and meaningful access to justice.

Detention Centres: Law and Human Rights

Perhaps no aspect of India's citizenship debate has generated more anxiety than detention centres. Under India's immigration framework, persons found to be foreigners may, in specified circumstances, be detained or held in designated facilities pending removal or deportation, subject to the applicable legal process.

Assam established dedicated detention facilities following judicial directions and administrative decisions. The Matia Transit Camp in Goalpara district is the largest such facility in the state.

Supporters argue that sovereign states possess legitimate authority to detain individuals awaiting deportation or removal.

When Deportation Cannot Happen

Critics counter that prolonged or indefinite detention becomes highly problematic when deportation itself is impossible because the receiving state does not recognise the detainee as its national. In such situations, detention risks effectively becoming an indefinite deprivation of liberty without criminal conviction.

The Supreme Court has on several occasions addressed questions relating to prolonged detention, and Article 21's guarantee of personal liberty applies to citizens and non-citizens alike.

International human rights standards likewise treat indefinite immigration detention without meaningful judicial review as deeply problematic.

The Principle of Non-Refoulement and the Rohingya Case

The treatment of Rohingya refugees has become one of the defining legal controversies of recent years.

The Rohingya, a Muslim minority from Myanmar's Rakhine State, have faced decades of persecution, discrimination and mass displacement. The United Nations has repeatedly documented widespread human rights violations against them.

Security Versus Non-Refoulement

Many Rohingya entered India seeking refuge. But the incumbent central government has consistently maintained that Rohingya migrants entered India illegally and may pose security risks.

Petitions before the Supreme Court argued that deporting Rohingya refugees would violate Article 21 of the Constitution and the international principle of non-refoulement — the principle that people should not be returned to territories where they face serious threats to life or freedom.

Although India is not a party to the Refugee Convention, advocates have argued that non-refoulement forms part of customary international law and is consistent with constitutional protections of life and dignity. The United Nations High Commissioner for Refugees (UNHCR), too, treats non-refoulement as a principle of customary international law.

In Mohammad Salimullah v. Union of India (2021), the Supreme Court declined to grant the interim protection sought against deportation of Rohingya detainees in Jammu, while making clear that they could not be deported unless the procedure prescribed by law was followed. The decision illustrated the continuing judicial tension between executive claims of national security and constitutional guarantees of personal liberty.

Push-Backs and Allegations of Informal Deportation

One of the most disturbing recent developments has been allegations of informal "push-backs" along India's borders. Unlike formal deportation, which ordinarily follows a legal determination and diplomatic coordination, push-backs refer to the practice of physically forcing people across a border without completing regular legal procedures.

Media reports and human rights organisations have documented allegations involving people who claim to be Indian citizens or long-term residents being taken to border areas and compelled to cross into Bangladesh.

The Sunali Khatun Case

One widely reported case was that of Sunali Khatun, a pregnant woman from Birbhum district of West Bengal who, along with her family members, was pushed into Bangladesh in June 2025 because some officials suspected that she was an undocumented migrant. The case travelled through the Calcutta High Court and the Supreme Court. Sunali and her son returned to India in December 2025 following the Supreme Court's intervention; her husband Danish Sheikh, Sweety Bibi and Sweety's two children returned in July 2026 after further proceedings. Their return did not, by itself, resolve the broader questions raised by the manner in which their citizenship was assessed, and the push-back carried out.

The case became emblematic of broader concerns over mistaken identity, procedural safeguards and the risks of informal border enforcement.

Authorities have disputed or denied many allegations of unlawful push-backs, maintaining that action is taken in accordance with law. Nevertheless, the controversy underscores why due process remains indispensable. The distinction between a foreign national and a citizen cannot be determined based on administrative suspicion alone; it requires legally verifiable procedures.

The consequences of error can be catastrophic. A wrongful deportation does not merely inconvenience an individual; it may separate that person from family and livelihood, strip away effective legal protection and, in some circumstances, create a risk of statelessness.

The Citizenship (Amendment) Act, 2019

No recent citizenship legislation has generated as much debate as the Citizenship (Amendment) Act (CAA), enacted in December 2019.

The Act created a special, expeditious route to Indian citizenship for migrants belonging to six religious communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians — from Pakistan, Bangladesh and Afghanistan who entered India on or before 31 December 2014 and meet the statutory conditions. The relevant provisions now appear in Section 6B of the Citizenship Act, 1955.

The government defended the Act as a humanitarian measure intended to protect persecuted religious minorities from neighbouring Muslim-majority republics. Supporters argue that these minorities have faced systematic discrimination and deserve an expedited pathway to citizenship because of the circumstances in their countries of origin.

Who the CAA Leaves Out

Critics, however, have been raising several constitutional objections.

First, the special statutory route excludes Muslims, including persecuted Muslim groups such as Ahmadiyyas and Hazaras, as well as Rohingya refugees from Myanmar. This does not make Muslims generally ineligible for Indian citizenship under the ordinary provisions of the Citizenship Act; it’s the special route created by the CAA that excludes them from Indian citizenship.

Second, the piece of legislation is confined to migrants from three neighbouring countries, leaving out persecuted minorities from other states in the region, including Myanmar and Sri Lanka.

Third, critics contend that introducing religion as an explicit criterion for this special citizenship route departs from India's constitutional commitment to equality before the law and secular statehood.

A large batch of petitions challenging the constitutional validity of the CAA and the 2024 Rules has been before the Supreme Court. In February 2026, the Supreme Court announced that the final hearings would begin on 5 May 2026. It heard the case from 5 May to 12 May 2026.

Although the Ministry of Home Affairs (MHA) has implemented the Act, the Supreme Court continues to hear numerous petitions challenging the law's constitutional validity on the ground of its religious criterion. In fact, the MHA has empowered district collectors in many states (and union territories), including Gujarat, West Bengal, Assam, Tripura, Punjab, and Rajasthan, to process applications and grant citizenship directly, notwithstanding legal challenges to the CAA’s constitutionality pending before the Supreme Court.

The controversy surrounding the Act reflects deeper disagreements over the nature of the Indian Republic itself: whether citizenship should remain fundamentally civic and constitutional, or should religious and cultural-civilisational considerations legitimately shape citizenship policy.

Citizenship, Documentation and Democracy

The citizenship debates in the twenty-first century reveal an important paradox.

Modern states increasingly rely on documents, databases and biometric identification to determine legal identity. Yet millions of ordinary people do not have all the documents needed to prove their citizenship because of poverty, migration, illiteracy, natural disasters and/or bureaucratic failures.

Documentary deficiencies often reflect state incapacity rather than individual wrongdoing. The danger therefore lies in transforming administrative gaps into existential questions of belonging.

Sovereignty and Due Process

Constitutional democracies ought to regulate immigration and protect their territorial integrity. Every state possesses the authority to determine the conditions of naturalisation, regulate its borders, and legislate on citizenship, subject to its constitutional order.

At the same time, democratic legitimacy depends on adherence to due process, equality before the law and judicial oversight.

The rule of law requires that decisions affecting liberty, nationality or residence be made through procedures that are lawful, fair and open to meaningful review and critique.

Citizenship Beyond Borders

India’s experience raises broader philosophical questions, too.

Is citizenship merely a legal status? Or is it membership of a political community built through participation, residence, labour and shared constitutional commitments?

Political philosophers have long debated whether citizenship derives primarily from birth, ancestry, civic participation or constitutional allegiance.

Modern democracies generally combine these principles in varying proportions to devise their citizenship law.

India's constitutional vision has historically leaned towards an inclusive civic understanding while recognising legitimate concerns about borders and migration.

A democracy confident in its constitutional foundations need not choose between national security and human dignity. Effective border management and constitutional protection are not mutually exclusive. Indeed, in the long run, each can strengthen the other.

Conclusion

Citizenship remains one of the most powerful legal institutions in the modern world. It determines political participation and bears directly on access to public entitlements, freedom of movement, security of residence and protection by the state. To lose citizenship, or even to have it placed in serious doubt, is to experience profound legal and existential insecurity.

India's experience demonstrates that citizenship cannot be understood solely through legislation. History, Partition, migration, regional politics, judicial interpretation, administrative capacity and competing visions of nationhood shape it.

The debates on the NRC, detention centres, the Rohingya, alleged push-backs and the CAA reveal not merely disagreements over policy, but also conflicting understandings of the constitutional republic itself.

A democratic state indeed has the authority to regulate immigration, identify foreign nationals and secure its borders. Yet sovereignty derives its legitimacy from constitutional restraint. Procedures must remain fair, evidence-based and subject to judicial review. The greater the power exercised by the State, the greater its obligation to ensure that no citizen is wrongfully deprived of belonging and that no refugee is denied the minimum protection owed to every human being.

Ultimately, the question "Who belongs?" cannot be answered by documents alone. It is answered through the principles a republic chooses to uphold when confronted with its most difficult cases. India's constitutional promise lies not in denying the complexity of citizenship, but in ensuring that, even amid political conflict, the rule of law, equality and human dignity remain the final arbiters of belonging.

Photo: Kushal Kar