The Parliament of India has cleared the Citizenship (Amendment) Bill, 2019 that sought to amend the Citizenship Act, 1955, to grant citizenship to illegal immigrants from Pakistan, Bangladesh and Afghanistan, belonging to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians Religions, if they faced religious persecution there.
Salient features of Citizenship (Amendment) Act 2019:
Definition of illegal migrants: The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship. The amended provisions of the Act provides that the following minority groups will not be treated as illegal migrants:
- Parsis and
from Afghanistan, Bangladesh and Pakistan.
However, to get this benefit, they must have also been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government.
How is citizenship acquired in India and How does the Act seek to change the criteria for determining citizenship? In India, citizenship is regulated by the Citizenship Act, 1955. The Act specifies that citizenship may be acquired in India through five methods –
- by birth in India,
- by descent,
- through registration,
- by naturalisation (extended residence in India), and
- by incorporation of territory into India.
The amended provision of the Act specifies that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship.
Citizenship by naturalization: The 1955 Act allows a person to apply for citizenship by naturalisation if he meets certain qualifications. One of these is that the person must have resided in India or served the Central Government for a certain period of time:
- for the 12 months immediately preceding the application for citizenship, and
- for 11 of the 14 years preceding the 12-month period. For people belonging to the same six religions and three countries, the Act relaxes the 11-year requirement to five years.
Thus, the Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.
Consequences of acquiring citizenship: The Act says that on acquiring citizenship:
- such persons shall be deemed to be citizens of India from the date of their entry into India, and
- all legal proceedings against them in respect of their illegal migration or citizenship will be closed.
Are the provisions of the Amended Act applicable across the country?
The Act clarifies that the amendments on citizenship to the specified class of illegal migrants will not apply to certain areas.
- the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and
- the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873. These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District. Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland.
How does the Amended Act change the regulations for Overseas Citizens of India?
The Act also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here. At present, the government may cancel a person’s OCI registration on various grounds specified in the Act. In case of a cancellation, an OCI residing in India may be required to leave the country.
The Amended Act adds another ground for cancelling OCI registration —
Violation of any law notified by the central government. However, the amended act does not provide any guidance on the nature of laws which the central government may notify. The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers. Therefore, the powers given to the government under the amended act may go beyond the permissible limits of valid delegation.
IS THE DIFFERENTIATION AMONG THE SPECIFIED CLASS OF ILLEGAL MIGRANTS AND ALL OTHER ILLEGAL MIGRANTS REASONABLE?
The Act makes only certain illegal migrants eligible for citizenship. These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states. This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the amended act, and may continue to be prosecuted as illegal migrants.
There are allegations that the amended act provides differential treatment to illegal migrants on the basis of :
- their country of origin,
- date of entry into India, and
- place of residence in India.
Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so. The question is whether these factors serve a reasonable purpose to justify the differential treatment. Therefore, we need to check the Statement of Objects and Reasons (SoR) of the Act.
STATEMENT OF OBJECTS AND REASONS (SOR):
While the Statement of Objects and Reasons (SoR) in the Act reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, (however, no reason has been provided to explain the inclusion of Afghanistan). The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups. There are thousands of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis who have entered India after facing religious persecution in countries like Pakistan, Bangladesh and Afghanistan without any valid document.
FURTHER ALLEGATIONS :
There are allegations that there are other countries which may fit this qualification. For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion) and Myanmar (primacy to Buddhism), have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively. Therefore, we need to analyse the historical reasons surrounding the Act.
NEHRU LIAQUAT PACT:
An agreement between the Governments of India and Pakistan regarding Security and the Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan. The need for such a pact was felt by minorities in both countries following the partition, which was accompanied by massive communal rioting. In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.
Some excerpts from the Pact:
“The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the text of the Pact begins.
“Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively,”
Thus summarily under the Pact both the countries agreed as below–
- Refugees were allowed to return unmolested to dispose of their property.
- Abducted women and looted property were to be returned.
- Forced conversions were unrecognized.
- Minority rights were confirmed.
The Home Minister Shri. Amit Shah, while defending the bill said that while India protected its minorities, Pakistan failed to do so — and it was this wrong that the CAB would now correct. While equal rights are guaranteed to all minorities in India by its Constitution and under the doctrine of Positive Secularism, Indian Judiciary has allowed positive equality to Minorities. And despite that similar provision exists in the Objectives Resolution adopted by the Constituent Assembly of Pakistan, it has adopted State Sponsored Religion and the Constitution of both Pakistan and Bangladesh doesn’t give equal rights religious minorities. Therefore, religious minorities in Pakistan and Bangladesh, do not get equal rights and they are also religiously persecuted in these countries. Therefore, to finish the unfinished Agenda of Nehru Liaquat Pact, the Government of India has passed the Act to correct the historical wrong to persecuted minorities in Pakistan and Bangladesh, that were once the part of Undivided India. However, the reasons for extending the same treatment to minorities from Afghanistan are still unclear.
India has to undertake a balancing act here. India’s citizenship provisions are derived from the perception of the country as a secular republic. In fact, it is a refutation of the two-nation theory that proposed a Hindu India and a Muslim Pakistan. Independent India adopted a Constitution that rejected discrimination on the basis of religion and the birth of Bangladesh undermined the idea that religion could be the basis of a national community. Also we need to balance the civilization duties to protect those who are prosecuted in the neighbourhood.
Muslims are not treated as a Residual Category in Citizenship Amendment Act 2019; they are equal stakeholders in the constitutional history of India. it is just that Muslims have got best protection under the respective constitutions of India, Pakistan and Bangladesh and therefore if still a section of Muslims illegally enters into India, they definitely cannot be termed as persecuted section of their respective country of origin.
While religious persecution is a reasonable principle for differentiation, it may not be articulated in a manner that dilutes the republican and secular foundations of Citizenship in India, and anything in the Act that goes against constitutional morality that is liable to be struck down by the Constitutional Courts of India; and the issues surrounding the Reasonable Classification And Intelligible Differentia, are set to be decided by Hon’ble the Apex Court of India.