Citizenship Amendment Act, 2019: An analysis
Author: Mr. Parth Thummar, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur.
Citizenship is at the heart of any modern state. It defines the relationship of an individual with a political community and recognizes his full and equal membership in that community. A citizen is the opposite of an alien.
On 4th December 2019 Union Cabinet cleared the Citizenship (Amendment) Bill, 2019 (hereinafter CAB). It aims at giving citizenship to religious minorities who are facing persecution in Pakistan, Bangladesh, and Afghanistan (in short PBA) by bringing amendment into Citizenship Act, 1955. Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians are the minorities that are explicitly mentioned in the act. Earlier Citizenship (Amendment) Bill, 2016 was passed by Lok Sabha but could not be passed in Rajya Sabha, hence on the expiry of 16th Lok Sabha, the bill lapsed. On 9th December 2019 again, it was introduced in Lok Sabha by Union Home Minister Amit Shah and the next day it was passed by 293 votes in favor of against 82 negative votes. Rajya Sabha passed it on 11th December with 125 MPs voting in favor and 105 dissenting. On 12th December president gave his assent to the bill and it became an act.
Background of the Act:
The Citizenship act, 1955 defines in Section 2(b) an illegal migrant as a foreigner who has entered into India, (i) Without a valid passport or other travel documents or any other document or authority which may be prescribed by law or, (ii) with such aforesaid documents but remains in India beyond the permitted period of time. These illegal migrants are defined as irrespective of their nationality or religion. The Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920 makes them liable to be prosecuted. They don’t have any rights and they are subjected to be detained and deported at the discretion of the government. The CAB aims to make these illegal migrants of certain religions eligible for Indian citizenship. And these people from certain religions get immunity from being deemed illegal immigrants and fast track path to becoming a citizen.
Among the many ways to acquire citizenship in India, illegal migrants can become a citizen of India by Naturalisation. Schedule 3 of The Citizenship act, 1955 lays down qualifications for citizenship by naturalization. Two of the many criteria are (i) he has been residing in India or has been in government service in India throughout the period of 12 months immediately preceding the application for citizenship and (ii) he should have resided in India for 11 years out of 14 years preceding the application
Changes Brought by the amendment:
This amendment has brought in mainly two changes.
- It has added a proviso to the definition of “illegal migrant” in Section 2(b) of The Citizenship Act, 1955 which states: “provided that persons belonging to minority communities, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh, and Afghanistan, shall not be treated as illegal migrants.”
- It has added a proviso in the 3rd schedule which reduces the number of years required to acquire citizenship by naturalization for the above-mentioned communities from 11 years to 5 years.
Tribal areas of Assam, Meghalaya, Mizoram, and Tripura, which are mentioned in the 6th schedule of the Indian Constitution are excluded from the application of this act. The areas which are regulated by Inner Line Permit (ILP) in the states like Arunachal Pradesh, Mizoram, Nagaland, and Manipur are also exempted. ILP protects the economic interests of the indigenous communities, and any outsider including Indian citizens is required to have a permit to enter these areas.
Justification by the government:
The government has defended by saying that, these three countries have state religion which is Islam, hence the implication is that in these countries minorities are at a special risk of being persecuted and therefore there can be blanket immunity given to them under the CAA.
But protesters have claimed that there is no denying that religious minorities have faced persecution in the neighboring countries but claiming that only non-Muslim minorities are the only victims in the non-secular and to be specific Islamic states will be misconstrued.
Challenge in Supreme Court:
This legislation has created unprecedented law in a sense that never before has religion been identified as a specific ground to identify citizens and non-citizens in the citizenship law. In fact, religion has become a new principle in the citizenship law. Many have branded this as “communally motivated humanitarianism”.
Many MPs from various opposition parties and some independent activists have filed petitions in SC challenging various sections of the said amendment and constitutionality of the act. In a surprising move, SC hasn’t stayed its implementation. By the time SC will deliver its verdict, many people would have been given citizenship and if SC declares amendment unconstitutional then those who have acquired citizenship by the act, their citizenship will be in jeopardy.
Challenge under Article 14:
One of the most fundamental principles under the Indian constitution is of right to equality in Article 14. Under that, even a person not just the citizen of India is entitled to equal treatment and equal protection of laws. Equal protection of law allows the government to draw certain classifications, the condition is that it must be reasonable i.e. non-arbitrary and it must have nexus with the purpose they are designed to serve. If the purpose is to protect people from persecution, then it simply cannot leave out certain categories of people. Issues is not that act includes a certain category of people, the problem is that it excludes people who are equally entitled and equally deserving of it. There are two different scenarios to look at the act.
- Considering this as a policy of the government, the government is at liberty to select countries. Under that, it has selected PBA. Then the test of Article 14 starts from there. Now if the purpose is to protect persecuted minorities in these countries, then all minorities need to be encompassed irrespective of their religion. Under the said act the yardstick for differentiation is persecuted minorities which includes Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians. It has excluded minorities facing discrimination or persecution based on their religious beliefs, which include Ahmadiyyas, Shias, and Baloch in Pakistan and Hazaras in Afghanistan. Hence there is no intelligible differentia. Extending benefits to one set of religious minorities and denying the same to other religious minorities who are fleeing because of persecution from the same country is without nexus with the object sought to be achieved. That way it falls under Article 14.
- If the fundamental and underlying reason for this new policy is India’s desire to redress persecution of minorities, then drawing line at some faiths while excluding others will seem arbitrary. Exclusion of minorities from other neighboring countries like Rohingyas from Myanmar, Madhesis from Nepal, Tamil Elam from Sri Lanka and Muslims from China deprives the CAA of the identity of secularity, progressiveness, and inclusivity. This selection of countries itself prima facie becomes arbitrary and hence non-reasonable. The act itself doesn’t give any principle or norm on selecting three countries for its application. From a historical perspective, Afghanistan never formed a part of the Indian subcontinent, whereas Barma was, in fact, part of under British rule when the Government of India Act, 1935 was enacted. There is no basis but all countries are Islamic states. That way also it can’t stand the test of Article 14.
It has also been argued that religious persecution is not necessarily linked with one’s religion only. Any individual (including atheists) may be subjected to persecution irrespective of his affiliation with minority or majority groups if his views don’t conform to the dominant sect enjoying the support of the ruling establishment.
The challenge under Article 21:
Article 21 says that nobody should be deprived of his life and liberty except the procedure established by law. Neither act nor allied Home Ministry prescribes any standard requirement of proving religious persecution or reasonable fear of it. At the same time, it has also not addressed the issue of religious converts. But it will be very early to judge act under this Article.
The challenge under Article 25:
Article 25 gives freedom of conscience and right to freely profess, practice and propagate any religion. Section 6 of the amendment may incentivize the person from three countries to change their religion to avail of the relaxed criteria of residence for obtaining Indian citizenship. This incentive to certain religion by state and not to other faiths would violate the freedom of religion available to “all persons” under article 25.
Challenge under article 51:
Though article 51 is in the directive principle of state policy and non-justiciable, the government can’t act in a manner contrary to it. Article 51 requires the state to endeavor to promote international peace and order. There act may lead to constrained relationships with neighboring countries. UN High Commissioner for Human Rights has referred to the Amendment Act as ‘fundamentally discriminatory in nature.’
CAA and its effect on NRC:
NRC is the National Register of Citizens. It began in Assam which is a bordering state where there was a big problem of continuing migration of people over the years mostly from Bangladesh. At some point, it led to a strong movement in Assam against that and it ended in Assam Acord. It resulted in an agreement between Assam and Union of India in 1985 for the preparation of NRC for identifying citizens of India and non-citizens. What we have seen at the end of Assam NRC is wide-scale exclusion and disenfranchisement and this is mostly because the NRC process relies upon documentary evidence of showing through documents that you are a citizen of India. In-country like India with widespread illiteracy and lack of documentation, this becomes a very difficult task. The Poorest and the most vulnerable people are the ones who find it hardest to show the document and their descent. Approximately 19 lakhs were left out of Assam NRC, mostly because they simply didn’t have documents, floods happened and documents were washed away with many other reasons. CAA has, in fact, nullified the Assam Accord of 1985.
Now if we combine CAA + NRC, what we get is, if one is a non-Muslim person who is left out of NRC, then he still has a possible path to Indian citizenship by claiming that he is non-citizen but he has come from those three countries. If one is Muslim and left out of NRC, then he absolutely has no chance and he is ruled out by virtue of CAA. They become subject to deputation or put in detention camps and so on.
Its votaries argue that CAA doesn’t affect the citizenship of any Indian citizen and it is an Act that gives citizenship and rather than taking it away.
They also argue that CAA is purely a matter of government policy so it shouldn’t be viewed with tests of the constitution. But that’s simply not correct, because as an when the government comes out with any policy and that policy is in form of any law, then that law has to be within the purview of the constitution, that means it should be in conformity with fundamental rights and it should not violate the basic structure of the constitution. If India seriously wants to give protection to refugees who have come to India or wishes to acquire shelter in India because of the persecution they have felt in their country then it should form a policy or for that matter, any law which is independent of caste, religion, race, sex or place of birth, because India is a secular country and religion can not be basis for any privilege it gives.