OF CITIZENSHIP AMENDMENT ACT, 2019
By: SHABIR AHMAD
The Citizenship Amendment Bill, 2019 has been approved by both the houses of Parliament and assented to by the President of India. Now, it is an act of parliament and law of the land. The Citizenship Amendment Bill, 2019 is basically an amendment to the Indian Citizenship Act of 1955.
Let’s look first who are residing in India. The residents can be either citizens, aliens, migrants and refugees. The concept of citizenship is basically a romance between the state and citizens. It is also a symbiotic relationship, where the state confers certain privileges, benefits and rights to its citizens and in return citizens have also certain obligations and duties towards the state. In lndia, only citizens have right to vote, right to contest elections and right to apply for government jobs. But if we look at the Fundamental Rights, almost all the Fundamental rights are available to both citizens as well as aliens except Article 15, 16, 19, 29 and 30. Barring these five Fundamental Rights, all other Fundamental Rights are available to aliens. But if we look at the aliens, they can be categorised into friendly aliens and enemy aliens. Friendly aliens are those who are the citizens of a country that share good relationship with India while as, enemy aliens are the citizens of a country with which India is at war. We can also call these aliens or foreigners as migrants, which can be further categorized into legal migrants and illegal migrants. Legal migrants are those migrants who came to India legally through Visa or any travel documents. While as, illegal migrants are those who came to India illegally without any legal travel document or those who came to India legally but their visa or travel document has expired and now they are over staying in India. The government of India can categorise some of these migrants into refugees.
According to United Nations, a refugee is someone who has been forced to flee his or her country because of fear of persecution, war or violence. A refugee has a well founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. According to UN, two third of all refugees in the world come just from five countries viz Syria, Afghanistan, South Sudan, Myanmar and Somalia.
There is a convention called 1951 Refugee convention or Geneva Convention. The 1951 Geneva Convention is the main international instrument of refugee law. The convention clearly spells out who a refugee is and the kind of legal protection, other assistance and social rights he or she should receive from the countries who have signed the document. The convention also defines a refugee obligation to host government and certain categories of people such as war criminals, who do not qualify for refugee status.
The convention was limited to protecting mainly European refugees in the aftermath of World War ll, but another document, the 1967 Protocol, expanded the scope of the convention as the problem of displacement spread around the world. It is pertinent to mention here that India has neither signed Geneva Convention of 1951 nor The 1967 Protocol.
Let’s look into Indian Citizenship Act, 1955. Normally, the matter of citizenship is not mentioned in any constitution of the world, citizenship is a matter that is left to the legislature of a country. But India is unique because, the country was partitioned in 1947 unfortunately, on the ground of religion, that is why the part ll of Indian constitution from Article 5 to 11 specifically deals with the provisions of Citizenship. Article 11 is very important, as it gives unfractured power to parliament to regulate all matters related to citizenship. That is why, in the year 1955, Indian Citizenship Act was passed by the parliament. A person can acquire Indian citizenship on ground of birth, descent, registration, acquisition of foreign territory and Naturalisation, provided that if the person is not an illegal migrant.
The Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920. In 2015 and 2016, the central government issued two notifications exempting certain groups of illegal migrants from provisions of the 1946 and the 1920 acts. These groups are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Pakistan and Bangladesh, who arrived in India on or before December 31, 2014. This implies that these groups of illegal migrants will not be deported or imprisoned for being in India without valid documents. This is the position of illegal migrants in India before Citizenship Amendment Act, 2019.
Provisions of the Act
The Citizenship Amendment Act amended the Act, to provide that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the countries of Afghanistan, Pakistan and Bangladesh will not be treated as illegal migrants. In order to get this benefit, they must have also been exempted from the Foreigners Act, 1946, and The Passport ( Entry to India) Act, 1920, by the central government. The Act says that on acquiring Indian Citizenship (l) such persons are deemed to be citizens of India from the date of their entry into India and (ll) all legal proceedings against them in respect of illegal migration or citizenship will be closed. That means, this law will have a retrospective effect.
The Act also adds that the provisions on Citizenship for illegal migrants will not apply to tribal areas of Assam, Meghalaya, Mizoram and Tripura, as these areas are protected under Sixth Schedule of the constitution. The areas under Inner Line under Bengal Eastern Frontier Regulation,1873. The Inner Line Permit regulates visit of Indians to Arunachal Pradesh , Mizoram, and Nagaland. The ILP to be extended to Manipur as well. ILP restricts people to visit these protected areas without a permit. That means if central government is going to provide Indian Citizenship to religious minorities of three countries, they can not settle down in these tribal areas. Then, why is Assam on boil? Why are people in Assam protesting? We need to understand that the entire Assam is not protected under Sixth schedule, there are mere few districts in Assam which are protected under the sixth schedule of the Indian constitution. Therefore, the Citizenship Amendment Act, 2019 will not be applicable in these areas.
The Act also reduces the period of naturalisation for acquiring Indian Citizenship to such group of persons from eleven to five years.
Arguments in favour of CAA
It is a law to provide Citizenship to all those religious minorities from these three countries who fled their countries because of fear of persecution, and it will not deprive the Citizenship of Indians.
Some people argue that this Act violates Article 14 of the Constitution, which is about right to equality. But if we read Article 14, we will find that it provides equality before law and equal protection of laws. That means we can not treat lion and lame equally, there has to be special provisions for lion and special provisions for lame. Therefore, it is because of this equal protection of laws that reservation for ST, SC, OBC, Women, etc. become possible. Then, how Article 14 is violated?
A number of petitions have been filed before the Hon’ble Supreme Court to challenge the constitutional validity of this act. Supreme Court will look this case from three angles only if it violates the Article14: (l) the statement of object and reasons for bringing this law; the main object of this act is to provide Indian Citizenship to particular religious minorities from three neighbouring countries who fear religious persecution, (ll) the concept of “intelligible differentia” which distinguishes persons or things that grouped together from others left out of the group. That means, Article 14 would have been violated if only Hindus and Sikhs from these three countries will be provided Indian Citizenship and all other minorities would have been excluded, and, (lll) rational nexus between the statement of object and reasons of this act and intelligible differentia.
Indian Muslims are in no way getting affected by this act. They are and will continue to enjoy all the benefits as legitimate Indian citizens.
There is another ground on which CAA is opposed and that is, it violates the principle of secularism which is part of basic structure of Indian constitution, why? because Muslims of India are excluded. But the point here, is that Indian Muslims are in no way getting affected by the CAA. As CAA is a law to confer Citizenship to all religious minorities from these three countries and not to deprive the Citizenship of Indian Muslims.
Some critics argue that why Shia Muslims and Ahmadiya’s of Pakistan, Hazars of Afghanistan are not included in this Act. Here, we need to make a distinction between persecuted religious minorities and ethnic violence.
The act is also being criticised on the ground that it violates Article 15 and 21 of the constitution. Article 15 talks about non-discrimination that means, state can not discriminate on the grounds of religion, race, caste, creed, sex, place of birth, etc. But It is pertinent to mention here that the provisions of Article 15 applies only to citizens and not to foreigners. Then, how can we say that Article 15 is getting violated. Similarly, the provisions of Article 21 also applies to Indians and not to those who are coming to India from abroad.
When the Bill was presented before parliament for discussion, opposition raised objections that parliament lacks Legislative competence to even discuss such type of Bill inside the House, as it is unconstitutional, but that is far from reality. in fact, Article 11 of the constitution gives unfractured power to parliament to regulate all matters related to Citizenship. So, if parliament wants to frame a law on the subject, it is within the legislative competence of the parliament.
Arguments against Citizenship Amendment Act, 2019
Here, I have a request that please don’t understand me as a bakht, liberal, etc. My only point is to present passionately without any bias clear picture of the Act.
There is religion based classification in the Act. Religion can not be basis of Citizenship in India. The Hon’ble Home Minister in his speech inside the parliament said that the importance of the bill lie in fact that country was partitioned on ground of religion; but that is half truth. Pakistan was created in the name of religion and not India. India is a secular state, then, how can in a secular country like lndia religion a base for granting citizenship. Here, l can say that Article 14 is getting violated, how? As I have mentioned above that there are three grounds to check whether Article 14 is getting violated or not; (l) statement of objects and reasons of the Act, (ll)Intelligible differentia, and (lll) rational nexus between objects of this Act and intelligible differentia. Now, how Article 14 is getting violated, for that let’s go back to Anwar Ali Sarkar,1952, in this case the Hon’ble Supreme court said that intelligible differentia means that there must be a yardstick to differentiate between those included in and those excluded from the group.
Let’s further look to recent judgement of Hon’ble Supreme court on section 377, in which Supreme court decriminalised homosexuality. Justice Inder Malhotra, in her judgment infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one, there must be a yardstick to differentiate between those included in, and excluded from the group and, two, that yardstick must be itself reasonable. ” Where a Legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. Therefore, the yardstick is reasonable only if it is not based on intrinsic and core trait of an individual. That means, religion can not be a discrimination under Article 14 of constitution, that is why Article 14 is getting violated.
The bill has also made a country based classification. The religious minorities from other countries like Sri-Lanka and Myanmar are not included in this act. There are some renown lawyers who are of the opinion that this country based classification is the policy decision of the government and it depends upon the government whom to choose and whom to ignore and Hon’ble Supreme court can not challenge this policy decision of government. But l disapprove their opinion on the ground that if we recall the landmark judgment of Hon’ble Supreme court when it cancelled 2G licenses on the ground that government cannot follow first come first serve basis policy, rather it should had auctioned the spectrum; that was also a matter of policy decision of government. That means, in policy matters, the Hon’ble Supreme court can question the wisdom of parliament and the executive.
Constitutionality of the Act
When the government will be asked by the supreme court to explain on what grounds religious minorities were chosen from only three countries while those of other countries were excluded; because the classification has to be reasonable, the argument number (l) that can be put forward by the government can be that these countries are neighbours; but neighbour is also Srilanka, Myanmar, then why these neighbours were excluded? And on this ground Act can be declared unconstitutional. Argument (ll) that can be put forth by government can be that only those countries have been chosen that were part of undivided India; then Hon’ble Supreme court can ask that if only such countries were chosen then how Afghanistan has been included that was not part of undivided India; on this ground also Act can be declared unconstitutional. Argument (lll) that can be put forward by the government that it can try to convince Judiciary that degree of harm is more in these countries than in any other country; here, Hon’ble Supreme court can raise a question that why Myanmar has not been included in this Act, because in United Nations of 2013 report, World’s most persecuted minorities are the Rohingyas of Myanmar, then these were excluded. And in this ground also, Hon’ble Supreme court can declare this Act as unconstitutional.
The manner in which the government has chosen these three countries is not a reasonable classification, it violates Article 14 of the constitution. The Citizenship Amendment Act, 2019 is more in tune with the Israeli Law of return that treats Israel as the natural home of all Jews. Ideally, we should say anyone persecuted anywhere in the world, on the ground of religion or political opinion would be welcomed in India.In numerous landmark Judgments, the Hon’ble Supreme Court has ruled that parliament can not destroy the fundamental values or basic structure (i,e. secularism) of the constitution even through an ordinary Law.
The Citizenship Amendment Act, 2019 will put even non Muslims citizens under severe hardship as those were till now asserting that they are Indian citizens, will now have to prove that they, in fact came from these three particular countries (that would be Law and the Lie).The object of this Act is to protect the religious minorities who face religious persecution in these three countries, but surprisingly, in the entire act, the word ‘religious persecution’ is nowhere mentioned in the Act.
Another criticism of the Act is that if l am man, who came to India illegally in 1971, then l got married in India. l have kids now and these kids are not eligible for Indian Citizenship because one of their parent is an illegal immigrant. Now, through this Act, it is said that the primary object of this Act is to protect those who face religious persecution. How is my son or his son, how he has faced persecution as he was born in India. He remained in India. How did he face religious persecution?
The Act also puts foreign policy of India in question. The Hon’ble Home Minister in his statement said that Muslims are not persecuted in Pakistan, runs contradictory to the stand taken by India at international fora on Baluchistan Muslims. We have already witnessed that Foreign and Home Minister of Bangladesh have cancelled their visit to India on the ground that if India is going to provide Citizenship to those who have fled Bangladesh because they were facing religious persecution that means, India is attacking Bangladesh. Therefore, the Act will have a negative impact on India- Bangladesh relationship who use to be all weather friend of India.
Furthermore, let’s combine NRC with CAA. When NRC was implemented in Assam, according to reports five to six lac Bengali Hindus were excluded in the NRC List. The government wanted to protect them and provide them Citizenship that is why they brought this law. Now, Home Minister has reiterated many times even inside parliament that NRC will be implemented nationwide. That means if we look at deadly combo of NRC and CAA; CAA says Muslims from other countries can not become Indian citizens; NRC says that Indian Muslims will have to prove their citizenship. That is the combine effect of NRC and CAA that is why some people say, if we look at CAA in isolation, there is no harm but when we combine CAA with NRC, this becomes a deadly weapon to disenfranchise Indian Muslims.
The Author is a Freelance Writer and writes regularly on contemporary issues of national and international importance. He can be reached at [email protected]