Analysis: Citizenship Amendment Bill, 2019

Reading time: 6-8 minutes.

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, LIBERTY and EQUALITY of status and of opportunity; Hereby Adopt, Enact and Give to Ourselves This Constitution”

Preamble of the Indian Constitution

The Citizenship Amendment Bill, 2019 was recently passed by the Rajya Sabha after enjoying a huge majority in the Lok Sabha on Monday. The bill will amend the Citizenship Act of 1955 to dilute the time requirements of the naturalisation process for non-Muslim immigrants from Bangladesh, Pakistan and Afghanistan.

Salient features of the bill

The bill proposes to amend the third schedule of the Citizenship Act of 1955 to grant fast-track citizenship to illegal immigrants who are Hindu, Sikhs, Buddhists, Jains, Parsis and Christians from Bangladesh, Pakistan and Afghanistan.

Under the new amendment, they will be eligible for citizenship by naturalization if they are able to establish their residency in India for five years as opposed to the requirement of establishing residency of eleven years or more under the original act of 1955.

Under the 1955 act, the requirements for citizenship by naturalization state that the applicant must have resided in India during the last twelve months, and for at least eleven years of the previous 14 years. This requirement has now been circumcised to five years for immigrants belonging to the aforementioned six religions from the three countries.

However, certain areas are excluded from the application of the act. These are the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, mentioned under the Sixth Schedule to the Indian Constitution. The areas regulated through the Inner Line Permit (ILP) including Arunachal Pradesh, Mizoram and Nagaland are also exempted from the applicability.

Inner Line permit is a system to protect the economic interests of the indigenous communities of Arunachal Pradesh, Nagaland and Mizoram. Any outsider, even if an Indian citizen needs an inner line permit to enter these areas. (Manipur was brought under ILP recently).

Justification of the bill

The NDA government first and foremost claims that the bill is a reprieve to the persecuted non-muslim minority groups who migrate to India from muslim majority countries – Bangladesh, Pakistan and Afghanistan. They aren’t treated equally, live off a minimal bare existence and therefore their naturalization process needs to be accelerated.

They claim that millions of people of various faiths and religions of undivided India were staying in the areas which constitute the above-mentioned countries today but when the partition took place on the basis of religion, many non-muslim minorities living in these areas faced religious persecution, these areas being declared as muslim majoritarian countries.

There rights to practice, profess and propagate the religion of their choice was obstructed. To escape this, many of them fled to India to seek a safe haven even with expired or incomplete travel documentation. These migrants, without valid or expired travel documents are currently regarded as illegal migrants and are ineligible to apply for Indian citizenship under section 5 or section 6 of the 1955 Act.

However, the said migrants (who entered into India up to the cut of date of 31.12.2014) shall now be considered for Indian citizenship by naturalization subject to proper conditions and restrictions under the amended citizenship act on humanitarian grounds.

Secondly, in the recent National Register of Citizens (NRC) exercise in Assam, lakhs of Hindus were left without citizenship due to faulty paperwork which also necessitated the introduction of the bill.

Controversy

The bill has been controversial due to the exclusion of Muslim migrants from the benefits conferred under it. The opposers of the bill allege that it undermines the constitutional principle of India being a secular nation by preferentially granting fast-track citizenship to only non-muslim migrants from Bangladesh, Pakistan and Afghanistan.

It is being hailed violative of Article 14, 15 and 21 of the constitution viz the right to equality, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and right to liberty.

There has been a particularly stiff resistance in the north-east. The cut-off date for regularising migrants is set by the proposed amendment as December 31, 2014 which directly contradicts the Assam accord of 1985 that set March 24, 1971 as the cut-off date.

In these parts, the people fear that the act will lead to lakhs of Hindus from neighbouring counties, especially Bangladesh will come to these regions, looking for Indian citizenship but such influx would harm the indigenous communities, burdening the already scarce resources and threatening their language, culture and tradition.

Critical analysis

First of all, the government’s claim that the partition of undivided India into India and Pakistan was religiously motivated is misleading. Pakistan was formed on the basis of Mohamad Ali Jinnah demanding a separate nation for Muslims but India was to always remain secular and open to people of all religions.

There is no doubt that the religious minorities in the neighbouring countries have faced persecution throughout the years. However, the claim that only non-muslim minorities face persecution in these non-secular muslim majoritarian countries is misconstrued.

There have been track record of muslim fundamentalists in these countries persecuting muslim minorities too be it Ahmadian and Shia Muslims of Pakistan or Rohingya Muslims of Myanmar. The bill is trying to isolate these minorities on an assumption that they are a welcome lot in these muslim majoritarian countries which is far from reality.

While the government promises to examine applications under the amended citizenship bill, on case to case basis, the exercise of NRC in Assam which left lakhs of legitimate Hindus out of the citizenship registers due to improper execution speaks for the ineffectiveness of government in handling individual cases of such extent.

Further, the current government is committed to carry out a nationwide NRC in order to identify and list Indian citizens and expel illegal migrants. Now, the people who are unable to produce satisfactory documentation will be expelled out of the NRC might be accepted as immigrants and may be given a fast-track citizenship under the proposed bill but people falling outside these the six religions might be rendered stateless as they are not protected under the proposed bill.

Also, Article 380 was recently revoked in muslim majoritarian populated Kashmir and the upcoming Citizenship Amendment Bill has the possibility of further shaking the already disturbed the social, political and economic equilibrium of the area.

Conclusion

The bill is largely hailed as an instrument legalising religious discrimination. It stands against the constitutional values of secularism by giving preferential treatment by extending fast-track Indian citizenship to specific categories of illegal migrant on the basis of religion, effectively rendering Muslims are second-class citizens, falling foul of secularist tendency of the Indian democracy in a classic act of narrow-minded exclusion on basis of religion.

These values constitute the basic structure of the constitution and cannot be altered by the parliament. While it cannot be denied that the non-muslim migrant minority will benefit from the bill and it will be a new dawn to lakhs of non-muslim migrants, it will also be the dusk for the muslim migrants in India and to the values of secularism that Indian once swore by.

Author: Oshin Malpani from Nalsar University of Law, Hyderabad.

Editor: Tamanna Gupta from RGNUL, Patiala.

Analysis: Citizenship (Amendment) Bill, 2016

Reading time: 6-7 minutes.

The controversial Citizenship (Amendment) Bill, 2016 was introduced in Lok Sabha on July 19, 2016. The Bill was referred to the Joint Parliamentary Committee which submitted its report in January this year. The Bill has been passed by the Lok Sabha.

The Bill amends the Citizenship Act of 1955 with regard to two categories of persons- illegal migrants and Overseas Citizen of India (OCI) card-holders.

How can Indian Citizenship be acquired? Who are Overseas Citizens of India?

Under the Citizenship Act, a person can acquire Indian citizenship by being born in the country or by being born to Indian parents or by residing in the country over a period of time (i.e. by naturalization). The Act prohibits illegal migrants from acquiring citizenship. An illegal migrant is a foreigner who either enters the country without valid travel documents like Passport or enters with valid documents but stays in India beyond the permitted period of time. Illegal migrants are liable to be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.

Overseas Citizens of India, in simple terms, are foreigners who are persons of Indian origin or who are spouses of persons of Indian origin. Compared to others foreigners, OCI enjoy various benefits like right to travel to India without a visa and to work or study in the country. Under the Citizenship Act, 1955 the central government may cancel OCI registration on various grounds and in case of cancellation, an OCI residing in India may be required to leave the country.

What are the Salient features of the Citizenship Bill?

The Citizenship (Amendment) Bill, 2016 seeks to provide citizenship to those Hindus, Sikhs, Jains, Buddhists, Parsis and Christians of Afghanistan, Pakistan and Bangladesh who fled to India before 31st December, 2014 because of religious persecution or fear of persecution in their home countries. These people were treated as illegal migrants by the Citizenship Act, 1955.  

The Bill also relaxes the minimum years of residence required for obtaining citizenship through naturalization from 11 years to 6 years for immigrants of these six religious communities from Afghanistan, Pakistan and Bangladesh.

With respect to OCI card-holders, the Bill introduces an additional ground on which the government can cancel the registration of OCI card-holders viz. violation by OCI of any law of the land. Earlier, their registration could be cancelled only if, within five years of registration, the cardholder was sentenced to imprisonment for two years or more for violation of any law. The effect of the amendment would be that the registration of an OCI card-holder will get cancelled if he breaks any law of the land, irrespective of whether it is a major or minor violation, and even if he has stayed in India for more than five years after registration.

What are reasons behind the introduction of this Amendment Bill?

The main reason for this amendment was the atrocities that the six religious communities faced in the three neighbouring country, Afghanistan, Pakistan and Bangladesh, which forced them to migrate to India. The Citizenship Act, 1955 treated them as illegal migrants and denied citizenship. It was in order to alleviate their plight that these amendments were proposed.

In September, 2015 and in July, 2016 the Central Government issued two notifications by which illegal migrants belonging to six religious minority communities of Afghanistan, Bangladesh and Pakistan who had migrated to India on or before December 31, 2014 were exempted from the provisions of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.This implies that these illegal migrants cannot be imprisoned or deported for not having valid papers.

The Citizenship Amendment Bill, 2016 seeks to grant further benefits to these migrants by making them eligible for citizenship.

What are the criticisms against the Bill?

The Bill has been staunchly opposed by the North-Eastern states. It is argued that continuous migration from surrounding areas has increased the population of the North-East in such a way that the average size of land holding in the region is only about one hectare. While the population of ‘India of 1901’ (which comprises of India, Pakistan and Bangladesh) increased by about 5.4 times between 1901 and 2011, the population of North-East increased by more than ten times during the same period.

The opponents of the Bill also stress that Assam cannot accommodate any more immigrants and that the Bill goes against the 1985 Assam Accord signed between the Rajeev Gandhi government and leaders of the Assam movement spear headed by the All Assam Students Union (AASU). Under the Accord, any person who came to Assam after midnight of March24, 1971, were to be identified as a foreigner. Opponents in Assam also argue that the National Register of Citizens (NRC) which would declare those who had entered Assam illegally after 25 March 1971 as foreigners will also be nullified by the Bill.

Another major criticism against the Bill is that by limiting accelerated citizenship to non-Muslims it tends to be discriminatory and violative of Article 14 of the Constitution which guarantees right to equality to citizens as well as foreigners. Article 14 requires that a law can be justified of treating persons differently only if there is a reasonable rationale for doing so. The Statement of Objects and Reasons of the Citizenship Bill does not provide any such rationale for restricting its benefits to only six religious communities. As the Rohingya crisis may have highlighted, even Muslims are fleeing persecution from neighbouring countries. Unfortunately they will not be eligible for Indian citizenship under the Bill. It is clear that the differentiation between illegal migrants on the basis of religion does not meet the Article 14 standards of equality protection.

The proposed change regarding Overseas Citizen of India (OCI) card-holders has also evoked criticism. Making their registration liable to be cancelled for violation of any law of the land, irrespective of the gravity of violation, leads to a situation wherein OCI registration can be cancelled for even minor offences like parking in a no parking zone or jumping a red light. The amendment is worrying given that the consequence of cancellation of registration is drastic as the person would be required to leave the country.

The North-eastern states have been marred by two waves of protest for some time now – protest in support of the Bill and protests against the Bill. During and after the visit of a Joint Parliamentary Committee to Assam and Meghalaya to collect feedback regarding the Bill, the Brahmaputra Valley saw protest opposing the Bill while the Barak Valley saw counter-protests in support of the Bill. In Guwahati, 135 groups submitted memorandums objecting the Bill and one of the memorandums was even signed in blood.

Union Home Minister Mr. Amit Shah has tried to pacify the protestors by assuring that the people of North-East had nothing to fear from the Bill and that it will not dilute Article 371 of the Constitution which grants autonomy to the North-Eastern states. He also assured them that the Bill will not affect any rights of the indigenous people nor will it affect the requirement of Inner-Line Permit that any visitor to Arunachal Pradesh, Mizoram and Nagaland has to possess for temporary stay in these places. Mr. Shah also pointed out that the proposed Bill had December 31, 2014 as the cut-off date and that no illegal immigrant arriving after this date would be granted citizenship.

Probable future…

The Bill would have both positive and negative consequences. The positive consequence is that the people of minority religious communities of the three neighbouring countries who flee to India from persecution can be assured of safety and peace. They would be treated as Indian citizens and would get food, livelihood, shelter and most-importantly, identity.

The negative effect of the Bill would be faced by the people of North-east as increase in population due to illegal immigrants would put stress on the scarce resources of the states. Moreover, there is a deep fear that the indigenous people of the states would become a minority if more outside people come and settle there. There is also apprehension of ethnic violence, which will hinder progress of the states.

A solution for alleviating the negative impact of the Bill on the North-eastern states is to shift the immigrants to other state also so as to ease the pressure on the resources of the North-East.

-This article is brought to you in collaboration with Rishabh Dixit from New Law College, Pune.