CITIZENSHIP AMENDMENT ACT, 2019: A CRITIQUE BY - MANISH KUMAR
CITIZENSHIP
AMENDMENT ACT, 2019: A CRITIQUE
AUTHORED BY
- MANISH KUMAR
ABSTRACT
The research
paper traces the legislative history of citizenship in India. Post this the
authors have delved into the provisions of the Citizenship Amendment Act to
outline the core sentiments laid out in it. However, the authors have mainly
aimed to deduce the constitutionality or unconstitutionality of the Act. Post
this the authors have argued as to whether the Act has any scope of
rectification or must be done away with completely. The authors have also invoked international
law to fully assess whether such policy decisions would be globally approved or
not. At last, the authors in their concluding remark have argued that this
constitutionally unpalatable legislation is ultra vires as it transgresses from
the Basic Structure Doctrine - Secularism and Equality as engraved in our Constitution
and must be repealed before we go back to the India of 1947 – politically
divided with a wildfire blazing all around.
1. INTRODUCTION
December 2019 saw paranoia amidst a
certain section of the society. This paranoia led to an eruption of wide-scale
protests wherein policemen, students and citizens were clashing almost regularly,
leaving several fatalities and many more injured as the Citizenship Amendment
Bill, 2019 made way for the Citizenship Amendment Act, 2019.[1]
Indian Muslims have watched with trepidation as the ruling party relentlessly
pursues its “Hindutva social agenda.”[2] The fears are not completely baseless – in concert
with the exercise of National Register of Citizens, Indian Muslims
expect the ramifications to include denigration of latter to second class
citizens and in all probability, the ouster of the same from the Indian soil.
Even before the 2014 Lok Sabha elections, the
Bharatiya Janata Party’s (BJP) election manifesto assured welcoming Hindu
brethren’s who have acquired the status of refugees or illegal immigrants.
Illegal migrants have
been defined as “any person from the Hindu, Sikh, Buddhist, Jain, Parsi or
Christian communities from Afghanistan, Pakistan or Bangladesh, who had entered
into India without valid travel documents or expired valid documents and who
are ineligible to apply for Indian citizenship under section 5 or section 6 of
the Citizenship Act, 1955.”[3]
In the 17th Lok Sabha on 9th
December 2019, the Bill was presented by the Minister of Home Affairs and was
subsequently passed on 10th December 2019. Then on 11th
December 2019, the bill was passed by the Rajya Sabha.[4]
On December 12, 2019, President Ram Nath Kovind by signing it, breathed life
into the Bill that would come to be certified as one of the most controversial
legislations of recent times.
2.
HISTORY OF CITIZENSHIP IN INDIA
Citizenship in India has been a
contentious topic even to the framers of Constitution, to the point wherein Dr
Ambedkar had declared it as giving the Drafting Committee maximum headache.[5]
While jus soli confer citizenship based on place of birth, jus sanguinis gives
recognition to blood ties. It was this principle of Jus soli that the Assembly
adopted.[6]
The 1947 partition happened in two
phases: the first phase of immigration occurred
from March 1947 when large numbers of Hindus and Sikhs arrived in India from
West Pakistan. Again in 1948, several
Indian Muslims returned to India from West Pakistan.[7]
Several issues cropped up – property disputes, poor living conditions,
separation of family members etc. The second migration created more trouble as
Hindus and Sikhs were being housed in the properties left behind by the Muslims
who had earlier evacuated to Pakistan but now returned to claim what was
rightfully theirs.[8] A
tense law and order situation was created and in the apprehension of communal
tensions which may arise, the Indian Government introduced a system on July 19,
1948, by which no person could migrate from West Pakistan into India without a
permit issued by the Indian High Commission in Karachi or Lahore. Thus, while
establishing the citizenship of Hindus and Sikhs migrating from West and East
Pakistan were relatively easy without any arduous procedure or inquiry, almost
automatic, Muslims had it harder – having to seek permanent resettlement
permits[9]
which weren’t doled out easily.
While such discrimination at the outset of Independence is telling us that the framers of Constitution had a tougher time deciding the grounds for citizenship. It was a dilemma to decide whether citizenship should be granted on grounds of religion or the universal approach must be adopted. After all it was argued that Muslims had a nation carved out for them. Hence its only right that Hindus and Sikh have India to themselves.[10] Secularism might have been declared as a Basic structure in the landmark Keshavanada Bharti case but it was only two years later when the word would be officially engraved in the Constitution by virtue of the 42nd Constitutional Amendment, 1975.[11]
3. INDIAN CONSTITUTION ON CITIZENSHIP
Articles 5 and 8
of the constitution categorizes the individuals entitled to hold Indian
citizenship. Article 5 deals with citizenship by domicile.[12]
According to Article 5 of the Constitution “all those domiciled and
born in India are entitled to Indian citizenship. Also, persons who were
domiciled but not born in India, although either of whose parents were born in
India is given citizenship. Lastly, anyone who has been an ordinary resident
for more than five years may apply for citizenship.”
Furthermore Article
6 of the Constitution categorizes individuals for purpose of Citizenship of
migrants to India from Pakistan.[13] According
to Article 6 of the Constitution there are two categories of persons who have
migrated from Pakistan to India:
i.
Those who came to India before July 19, 1948, and
ii.
Those who came on or after July 19, 1948.
Persons who have
migrated to India preceding July 19, 1949, would by default become an Indian
citizen if either of his parents or grandparents was born in India. But those
who entered India after this date needed to register themselves, after residing
for at least six months immediately before the date of applying for
registration, by an officer appointed by the government of India.
Article 7 of the
Constitution also deals with Citizenship of migrants of Pakistan.[14] According to Article 7 of the Constitution, “all
the persons who had migrated to Pakistan post-March 1, 1947 but afterwards
returned on resettlement permits were also included in the citizenship ambit
after registering her/himself as a citizen of India. He/she can do so after residing
for at least six months immediately before the date of applying for
registration.” Whereas Article
8 of the Constitution deals with citizenship of persons of Indian origin
residing outside India whereby, “any Person of Indian
Origin residing outside India or either of whose parents or grandparents were
born in India could register himself/herself as an Indian citizen with the diplomatic or
consular representative.”[15]
Article 9 of the Indian Constitution states that “on voluntarily
acquiring the citizenship of a foreign State, an individual will lose his
citizenship.”[16]
Whereas Article 10 of the Constitution provides that “every person who is/is
deemed to be a citizen of India under any of the provisions of Part 2 shall, subject
to the provisions of any law that may be made by Parliament, continue to
be such citizen.”[17]
Lastly Article 11 of the Constitution authorizes the Parliament to
make provision concerning the acquisition and
termination of citizenship and all matters relating to it.[18]
4.
THE FORERUNNER OF CAA-
CITIZENSHIP ACT, 1955.
India doesn’t allow for dual
citizenship. Any person by birth, descent, registration
and naturalization may acquire an Indian Citizenship which is enumerated under
the Citizenship Act, 1955. The Act has been amended four times since its enactment.
Section 3 of the Act states that “every person
born in India on or after 26.01.1950 but before 01.07.1987 is an Indian
citizen, notwithstanding the nationality of his/her parents. If the person was
born in India between 01.07.1987 and 02.12.2004, the individual is a citizen of
India provided either of his/her parents is a citizen of the country at the
time of his/her birth. Every person born in India on or after 3.12.2004 is a
citizen of the country given both his/her parents are Indians or either parent
is a citizen and the other is not an illegal migrant at the time of his/her
birth.”[19]
Section 4 of the Act deals with citizenship on
ground of descent.[20]
According to Section 4 of the Act, “person born outside India on or after
January 26, 1950, is a citizen of India by descent if his/her father was a
citizen of India by birth. A person born outside India on or after December 10,
1992, but before December 3, 2004, is an Indian if either of his/her parents
was a citizen of India by birth. If an individual born outside India or after
December 3, 2004, has to acquire citizenship, his/her parents need to make a
declaration to the effect that the minor isn’t the citizen of any other country
and accordingly, his/her birth must be registered at an Indian consulate within
a year of the minor’s birth.”
Section 5 permits acquiring Citizenship by
registration provided that:[21]
·
A person
of Indian origin has been a resident of India for 7 years before
applying for registration. Or,
·
A person
of Indian origin who is a resident of any country outside undivided India. Or,
·
A person
is married to an Indian citizen and is ordinarily resident in India
for 7 years before applying for registration.
·
Minor
children born to persons who are citizens of India.
Section 6 of the Citizenship Act states that “a
person can obtain citizenship by naturalisation if he/she is ordinarily
resident of India for 12 years (throughout 12 months preceding the date of
application and 11 years in the aggregate) and satisfies
all qualifications in the third schedule of the Citizenship Act,1955.”[22]
When the 1986 amendment happened, it made Section 3
less exclusive. The amendment entailed that those who were born in India on or
after January 26, 1950, but before July 1, 1987, shall be Indian citizen while
those born post-July 1, 1987 but before December 4, 2003, can get citizenship
only if he/she’s born in India and either of his parents was an Indian citizen
at the time of the individual’s birth.[23]
Again, in the 2003 amendment, immigrants from
Bangladesh were targeted stating that those born on or after December 4, 2004,
in India must also have both parents who are Indian citizens or one parent must
be an Indian citizen and other should not be an illegal migrant.[24]
Thus, it is evident that India has wavered from the jus soli principle to jus
sanguinis over time.
5.
EVOLUTION OF CAA
The Citizenship (Amendment) Act, 2019
comes as a salvation for the persecuted - or so the Government of India touts.
However, salvation comes with a caveat. What the Act seeks to amend is the Citizenship
Act, 1955. Under the new Act, the Section 2 of the 1955 Act has been amended to
state that “any person who is a Hindu, Sikh, Buddhist, Jain, Parsi, and
Christian who happen to be migrants from Afghanistan, Bangladesh, and
Pakistan are eligible for citizenship of India.”[25]
Notably, Muslims, Jews and non-believers have been excluded from the list. The
countries listed are Islamic Republics. No other country which happens to be
the neighbour of India has made it into the list.
Also, the cut-off date for citizenship
application has been kept at December 31, 2014, i.e., only immigrants of the
mentioned religions, who have entered India on or prior to that date are only
entitled to this benefit.[26]
These immigrants fleeing religious persecution and who have entered on or
before the cut-off date shall be deemed to be citizens of India from the date
which they enter into India and any legal action against them concerning their
illegal immigration or citizenship will be terminated.
The law applies to only those who “have faced persecution on grounds of
religion in those countries.”[27] It aims to protect people of the above-mentioned
religions from proceedings of illegal migration. Thus, people fleeing only
religious persecution (and not political or ethnic or racial persecution or any
other!) are entitled to apply for citizenship. Fascinatingly, religious
persecution finds no mention in the final Act. However, the Citizenship (Amendment) Bill, 2019
elaborates the objective of its genesis in its Statement
of Objects and Reasons which was discussed by the Minister of Home Affairs. It
is in that Statement of Objects and Reasons that persecution on the ground of
religion finds a citation.[28] It has been admitted that the rationale of
this Bill/Act was to undo the wrongs of the 1947 Partition of India. It was to
give a home to these religious communities who were obstructed and
restricted from their right to practice, profess and propagate their religion
in these predominantly Islamic states.[29]
Before this amendment the period of wait for
naturalization was 11 years. The principal perquisite being offered by the Act
is that it has reduced this period of wait for naturalization for migrants
belonging to these particular communities, from 11 years to at least 5 years.[30]
Another aspect of
the Act would be the exclusion of seven North-eastern states from the
implementation of the amended provisions. The Act categorically exempts the
application of the act to tribal areas of Assam, Meghalaya, Mizoram or Tripura
as included in the Sixth Schedule to the Constitution and all the areas covered
under the ‘Inner Line Permit’ (ILP) notified under the Bengal Eastern Frontier
Regulation, 1873.[31]
Interestingly, some of the most vehement protests have come from these NE
states, mainly Assam which regards the amendment as a threat to their culture,
economy and politics and a breach of the Assam Accord which is likely to occur
from the influx of the migrants from Bangladesh.
Lastly, the Act also talks about individuals
holding Overseas Citizen of India (OCI) cards – a status of permanent residency allowing a foreign citizen of Indian origin to
live and work in India indefinitely minus certain rights such as the right to
vote or to hold government office. Post the enactment, there may be
cancellation of the OCI registration if the individuals violate any provision of any
law as would be notified by the Central Government.[32]
Notably, the provision is ambiguous as to what kinds of laws may be notified by
the Central Government for the implementation of the provision. The Bill
accepts that since there are redressal mechanisms available to such overseas
citizens on cancellation of registration, they shall be given an opportunity to
be heard before cancellation of such registration.[33]
6.
INDIA’S INTERNATIONAL COMMITMENTS
The
parameters of securing global approval for a law as contentious as CAA are
clear. Granting national
citizenship to refugees are treated as matters exclusively within the
competence of each nation. Granting asylum and non-refoulment of refugees might
be jus cogens but granting of citizenship is a matter of discretion on part of
the individual nations.[34]
However, there are certain principles such as non-discrimination and non-arbitrary deprivation of
citizenship which are considered to be part of customary international law and
therefore, regarded as non-derogable to a great extent.[35]
What are the other legal instruments
that speak about granting refugees citizenship?
The
general rule is that States party to a convention or agreement must see through
it in good faith (Pact Sunt Servada).[36]
However, the agreements are not binding on States not party or signatory to it.
Thus, India not being a
party to the Vienna Convention on the Law of Treaties implies that there might
be difficulty in invoking India’s internal legislation to observe international
commitments.[37]
Nevertheless, the UN Convention
Relating to the Status of Refugees[38]
and the Protocol Relating to the Status of Refugees[39]
states that State parties are to grant refugee status to individuals who are
persecuted or fear persecution on grounds of ‘race, religion, nationality,
membership of a particular social group or political opinion’. State parties
are required to implement the provisions of the Convention without any
discrimination based on an applicant’s race, religion or country of origin.
Article 26 of the International
Covenant of Civil and Political Rights prohibits non-discrimination to any
person (including refugees/classes of refugees) and grants them equal and
effective rights.[40] Article 2(1) requires the States to guarantee rights
without distinction based on certain specified grounds.[41] The
1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws limits the exclusive competence of States in nationality
matters by providing that “it is for each State to determine under its law
who are its nationals. This law shall be recognized by other States in so far
as it is consistent with international conventions, international custom, and
the principles of law generally recognized with regard to nationality.”[42]
It is pertinent to
note that the Indian Constitution recognizes right to equality and the equal
application of the law. The 1948 Universal Declaration of Human Rights,
which India is a signatory to, specifically prohibits arbitrary deprivation of
nationality.[43] It
is also interesting to note that India has ratified neither the UN Convention
Relating to the Status of Stateless Persons, 1954 nor the Convention on the
Reduction of Statelessness, 1961.
Several Conventions
and Agreements give directives on treatment of refugees but several experts -
from Hailbronner (“States
remain under no obligation to grant asylum ... to refugees”),[44]
Morten Kjaerum (“States have been unwilling to pledge themselves in
international conventions to the individual's right to asylum”);[45]
David A. Martin (“Classically, the right of asylum under international law
belonged to states and not to individuals”)[46];
to Paul Weis (“According to general international law as at present
constituted, the so-called right of asylum is a right of States, not of the
individual”)[47] - most have conceded that when it comes to matters of granting asylum and citizenship
to persecuted refugees, the international law falters before the will of the
Nation.
7.
CONCLUSION AND SUGGESTIONS
The Apex Court of India in the case
of Budhan Choudhary v. State of Bihar[48]
has observed that there are two conditions which needs to be fulfilled for
passing the test of permissible classification. Firstly, the classification
must be based on an intelligible differentia. Secondly the differentia needs to
have a rational relation to the object sought to be achieved by the statute in
question. It is also pertinent to note that Article 14 of the Indian
Constitution 14 condemns discrimination not only by a substantive law but also
by a law of procedure. the object of the law must itself serve a legitimate aim
of the State.
There are following loopholes in the
Citizenship Amendment Act, 2019: -
(i)
Other
Religious Communities- The Citizenship Amendment Act, 2019 is applicable only
upon Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants from the
countries Pakistan, Afghanistan and Bangladesh. It does not take into
consideration the Jews, Muslim minorities like Shias or Ahmadiyas, atheists who
are facing persecution on the grounds of religion, in Afghanistan, Pakistan or
Bangladesh. The Citizenship Amendment Act, 2019 covers some religious
communities while ignores others thereby violating the principle of secularism
enshrined in the preamble of our Constitution.[49]
(ii)
Selection
of Countries- The Citizenship Amendment Act, 2019 applies only upon those
refuges that are facing religious persecution in Pakistan, Bangladesh and
Afghanistan. It ignores the victims of religious persecution from neighboring
countries like Myanmar, Sri Lanka, and Bhutan etc…It is pertinent to note that
Rohingyas are facing persecution in Myanmar whereas Sri Lanka is not safe for
Tamilian Hindus.[50]
(iii)
Cut-off
Date- The Citizenship Amendment Act, 2019 grants protection to only those
refugees who have entered India before 31st December, 2014. Those
refugees, who have entered this country after 31st December, 2014
will not be granted citizenship under the Citizenship Amendment Act, 2019
despite the fact that they have faced religious discrimination or may face
religious persecution if they reside in those countries specified under the
Citizenship Amendment Act, 2019. In the
words of Dr. Abhinav Chnadrachud this cutoff date undermines the ostensibly
humanitarian aim of the Citizenship Amendment Act, 2019.[51]
(iv)
Non-Religious
Prosecution- The Citizenship Amendment Act 2019 do not take into account
political persecution or persecution based upon sexual orientation. It
considers only religion a ground of persecution.[52]
Due to the above-mentioned reasons,
it is important that the Citizenship Amendment Act, 2019 needs to be opposed.
In a democratic and Secular India which is governed by a liberal constitution,
enactment of such law violates the right to equality and is also anti-thesis to
rule of law. Furthermore, the Citizenship Amendment Act also violates the
principles of International Law. As a result, it is important that the Apex
Court strikes down this legislation and reclaims its position as the guardian
of the Indian Constitution.[53]
[1] Jayshree Bajoria, “Shoot the
Traitors” Human Rights Watch (April 27, 2022, 6:30 p.m.),
https://www.hrw.org/report/2020/04/09/shoot-traitors/discrimination-against-muslims-under-indias-new-citizenship-policy#.
[2] NH Desk, “CAA, an outcome of
BJP’s Hindutva agenda: US commission,” National Herald (April 27, 2022,
6:40 p.m.),
https://www.nationalheraldindia.com/flick-past/caa-an-outcome-of-bjps-hindutva-agenda-us-commission.
[3]The Citizenship
(Amendment) Bill, 2019, Clause 3 of the Statement of Objects and Reasons (Bill No. 370 Of 2019).
[4] Parliament passes the Citizenship
(Amendment) Bill 2019, Pib.gov.in, (April 27, 2022, 7:00 p.m.), https://pib.gov.in/newsite/PrintRelease.aspx?relid=195783.
[5] Parliament of India, Constituent
Assembly Debates, Volume IX (August 10, 1949) (speech of Dr. Ambedkar).
[6] Faizan Mustafa, Assam NRC: Who is
an Indian citizen? How is it defined? The Indian Express, (April 26, 2022, 7:00
p.m.), https://indianexpress.com/article/explained/assam-nrc-citizenship-amendment-bill-indian-citizen-5924953/.
[7] Abhinav Chandrachud, ‘The Origins of
Indian Citizenship,’ Bloomberg Quint (April 26, 2022, 8:00 p.m.),
https://www.bloombergquint.com/opinion/citizenship-amendment-act-the-unsecular-origins-of-indian-citizenship-by-abhinav-chandrachud.
[8] Vazira Fazila & Yacoobali
Zamindar, The Long Partition and the Making of Modern South Asia: Refugees,
Boundaries, Histories (2007), Columbia University Press, pp. 85-86.
[9]Permit System Rules, 1948 (August 7
1948),
https://archive.org/details/in.gazette.e.1948.84?q=Influx+from+Pakistan+%28Control+%29+Ordinance
[10] Parliament of India, Constituent
Assembly Debates, Vol. IX (August 11, 1949) (speech of P.S.
Deshmukh).
[11] Adrija Roychowdhury, ‘Secularism:
Why Nehru dropped and Indira inserted the S-word in the Constitution,’ The
Indian Express (April 28, 2022, 7:00 p.m.)
https://indianexpress.com/article/research/anant-kumar-hegde-secularism-constitution-india-bjp-jawaharlal-nehru-indira-gandhi-5001085/.
[12] The Constitution of India, 1950,
art. 5.
[13] The Constitution of India, 1950,
art. 6.
[14] The Constitution of India, 1950,
art. 7.
[15] The Constitution of India, 1950,
art. 8.
[16] The Constitution of India, 1950,
art. 9.
[17] The Constitution of India, 1950,
art. 10.
[18] The Constitution of India, 1950,
art. 11.
[23] Press India, Those born before Jul
1, 1987 or whose parents born before that are Indian citizens: Govt,
Business-standard (April 28, 2022, 7:00 p.m.) https://www.business-standard.com/article/pti-stories/those-born-before-jul-1-1987-or-whose-parents-born-before-that-are-indian-citizens-govt-119122001163_1.html.
https://indiancitizenshiponline.nic.in/citizenshipact1.htm.
[24] The Citizenship (Amendment) Act,
2003, https://indiankanoon.org/doc/949775/.
[27]The Citizenship
(Amendment) Bill, 2019, Bill
No. 370 Of 2019, Clause 2 of the Statement of Objects and Reasons.
[28] Id.
[29] Id.
[31]The Citizenship
(Amendment) Bill, 2019, Bill
No. 370 Of 2019, s. 3 (4) And Clause 10 of the Statement of Objects and Reasons.
[34] Vani
Manoraj, Refugee and the Non-Refoulement Obligation, SSRN (April 28, 2022, 7:00
p.m.) https://ssrn.com/abstract=3314297 or http://dx.doi.org/10.2139/ssrn.3314297
[35] Resolution 26/14 (2014) &
Resolution 32/5 (2016), UN Human Right Council.
Right to a Nationality and Statelessness, Ohchr.org,
https://www.ohchr.org/EN/Issues/Pages/Nationality.aspx.
[36] I. I. Lukashuk, The Principle
Pacta Sunt Servanda and the Nature of Obligation Under International Law, The
American Journal of International Law, Vol. 83, No. 3 (Jul., 1989), pp.
513-518, https://doi.org/10.2307/2203309.
[37] Rajeev Dhavan, Treaties and
People: Indian Reflections, Journal of the Indian Law Institute, Vol. 39,
No. 1 (January-March 1997), pp. 1-46, https://www.jstor.org/stable/43951677.
[38] UN Convention Relating to the
Status of Refugees, 1950, 189 UNTS 137.
[39] Protocol Relating to the Status of
Refugees, 1996, 606 UNTS 267.
[40] International Covenant of Civil
and Political Rights, 1966, art. 26.
[41] International Covenant of Civil
and Political Rights, 1966, art. 2(1).
[42] The
1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws, art.1.
[43] Universal
Declaration of Human Rights, 1948, art.15 (2).
[44] Molding a New Human Rights Agenda,
8 Wash. Q. 183 (1985).
[45] Article 14, In the Universal
Declaration of Human Rights: A Commentary 220 (Asborn Eide Et Al. Eds., 1992).
[46]
Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138
U. Pa. L. Rev. 1247, 1253 (1990).
[47] Legal Aspects of The Convention Of
25 July 1951 Relating to The Status of Refugees, 1953 Brit. Y.B. Int'l L. 478, 481.
[48] Budhan Choudhary v. State of
Bihar, AIR 1955 SC 191
[49] Suhrith Parthasarathy, ‘Why the
CAA Violates the Constitution,’ The India Forum (April 29, 2022, 8:00 p.m.),
https://www.theindiaforum.in/article/why-caa-violates-constitution
[50] Id.
[51] Abhinav Chandrachud, ‘The
Origins of Indian Citizenship,’ Bloomberg Quint (April 26, 2022, 8:00
p.m.),
https://www.bloombergquint.com/opinion/citizenship-amendment-act-the-unsecular-origins-of-indian-citizenship-by-abhinav-chandrachud.
[52] Id.
[53] Gautam Bhatia, ‘Proposed
citizenship law is immoral, will unleash a legally-sanctioned regime of
discrimination,’ The Indian Express (April 30, 2022, 6:00 a.m.), https://indianexpress.com/article/opinion/citizenship-amendment-bill-union-cabinet-strangers-in-their-own-land-6154534/