12, Dec 2019 | Sanchita Kadam
What is Citizenship Amendment Act?
It is an Act that proposes that all Hindu, Sikh, Buddhist, Jain, Parsi or Christian refugees from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 without any valid travel documents such as passport, will be granted citizenship by naturalization on applying for the same, subject to certain easy to fulfill conditions.
Citizenship has been defined as the right to have rights. Over the past six years, there have been clear political moves to fundamentally assault and redefine this Constitutional basis of both Indian nationhood and citizenship. Especially now, with the newly drafted proposed Citizenship Amendment Bill, 2019 and a not thoroughly debated all India-level NPR-National Register of Citizens (NRC) process. CJP is urging people to understand, organise and fight back democratically. Let’s stand up for the Constitution of India. We must unequivocally reject CAB 2019 and at the same time in the same breath, NPR/NRC. For this we need your support.
How is the Act violative of the Constitution?
The Act violates the basic structure of the Constitution which was established by the Supreme Court in Keshavananda Bharti case. This case established the supremacy of the Constitution, India’s foundations as a republic, and emphasised the importance of the Preamble that stressed on Equality (of status and opportunity) and Justice (social, economic and political). Inherent values of secularism, equality and non-discrimination are India’s constitutional ideals and aspirations which inspired the country in its struggle for independence. Equality (Article 14), right to life (Article 21) and non-discrimination (Article 15) are key Constitutional principles that this Act violates. Although the word secular was added by 42nd amendment in 1976, the case which was decided in 1973 had made it clear that while interpreting the Constitution, it should be done while taking the Preamble into consideration.
The Citizenship Amendment Act, hence, is violative of the ‘secular’ fabric of our constitution, as it is making a law while giving preference to certain religions thereby giving an impression that the state is unfavourable towards one religion which a secular state is not supposed to do.
The Act also stands to violate Article 14 (equality before law) and Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth).
Ideally, as per Article 13(2) since the Citizenship Amendment Act takes away/abridges rights conferred under Fundamental rights as mentioned above, it is to be considered as void.
Why does the Act leave Muslims out?
As per Union Home Minister, Amit Shah, Bangladesh, Pakistan and Afghanistan are Islamic or Muslim dominated countries where Muslims are a majority. Hence, Muslims cannot be said to be religiously persecuted in these countries and hence are not being included under this amendment.
Is it true that Muslims do not face religious persecution in Pakistan?
No. The Ahmadiyya community in Pakistan suffer severe religious persecution. They are not allowed to call themselves Muslims. So are the Baluchis in Baluchistan.
Who does this Act wilfully ignore?
To name a few, Rohingyas from Myanmar, Tamils from Sri Lanka (Muslim or Hindu!), Ahmadiyyas from Pakistan are a few examples of people who have faced religious persecution but are not being protected under the Act.
What are the implications of the Act for Muslims who have been living in India?
There are concerns that this fundamental, statutory exclusion could, by manipulation and interpretation also impact those Indian Muslims who have never migrated, have always lived here for generations, but will subsequently be required to produce a slew of documents hitherto not available to over 40% of Indians. (especially as and when the NPR-NRC exercise is launched).
What are the implications of the law for Muslims who migrated to India?
By implication, or interpretation, all Muslims who seek Indian citizenship by naturalisation (application hitherto made after 12 years residence as migrants/refugees) will not be eligible for grant of citizenship by right. This will be discretionary alone. Thousands of Afghan refugees as well as Rohingyas, currently living in India could well come under direct threat. The resulting statelessness is a cause for deep concern as their fates could lie not in the “Refugee” or “transit” camps, as they are at the moment, but in detention camps. The legal basis of these detention camps is as much in question as are the abysmal conditions and non-transparency under which they operate.
Why is the cut-off date set as 31st December, 2014
The government has not provided any justification for this cut-off date. There has been no significant event or incident that has prompted this to be the cut-off date, at best it is arbitrary.
Will the law only give refuge to “persecuted religious minorities”?
Although the premise of the law has been to give refuge to “persecuted religious minorities”, the law is silent on this in its provisions. The law simply gives all illegal migrants, irrespective of the reason for their migration, from these 3 countries the provision to obtain easy citizenship.
What will happen to people who cannot claim citizenship as per this Act?
The implications have not been enumerated in the law but taking Assam as an example, one can only infer that such persons will find themselves being detained in detention camps, preparations for which have already begun in states like Maharashtra, Karnataka and West Bengal.
Are proposals for the amendment to the law a sudden move?
No. CAA 2019 re-appears in the BJP Party’s election manifesto for the 2019 General Elections. The BJP’s 2014 manifesto rather crudely states that “India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here.”
The Modi government has, since it came to power in 2014, been laying down the groundwork for the Citizenship Amendment Act since 2015 via amendments of 2015 and 2016 in the Foreigners Order, 1948 and Passport (Entry into India) Rules, 1950.
The addition to the Foreigners Order, 1948 reads as follows:
“3a. Exemption of certain class of foreigners.- (i) persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014”
The addition to Passport (Entry into India) Rules, 1950 reads as follows:
“(ha) persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014- (i) without valid documents including passport or other travel documents; or (ii) with valid documents including passport or other travel document and the validity of any of such documents has expired: provided that provision of this clause shall take effect from the date of publication of this notification in the official gazette.”
In 2016, the above rules were amended to include Afghanistan.
Who is exempted from application of provisions of Citizenship Amendment Act?
Clause 4 of section 6(B), states as follows:
“Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873”
What is the Inner Line?
The ILP is an official travel document issued by the Government of India to allow inward travel of an Indian citizen into a protected area for a limited period. The ILP regime is under the Bengal Eastern Frontier Regulation, 1873. Section 2 of the regulation says the ILP system is present in Arunachal Pradesh, Mizoram and Nagaland.
Since Manipur does not get included in either of these exemptions, while addressing the Lok Sabha, Union Home Minister, Amit Shah mentioned that Manipur will be brought under Inner Line Permit regime and effectively out of the purview of Citizenship Amendment Act.
What is the effect of Citizenship Amendment Act on NRC recently concluded in Assam?
Clause (3) of section 6(B) also provides that any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him.
Hence, all non-Muslims in Assam’s non-tribal areas (areas not covered under 6th schedule of Constitution), who are amongst the 19 lakh people excluded from NRC, can be granted citizenship as per this law. This will mean that the government of Assam will have to brazenly differentiate between those left out of NRC who are Hindus and those who are Muslims.
However their legal existence will now have to be as per the amended sections where they need to claim, on affidavit, that they are ‘persecuted minorities’ who have come in at some date prior to December 2014, never mind if they are Bengali Hindus who have been living in the state for several decades or more! The law is also proving to be an antithesis to the NRC process even for the Hindus and the 5 other communities. In Foreigners Tribunals they have been struggling to prove that they are India citizens but with the new law that stresses on “persecuted religious minorities” they might have to prove that they belong to one of the three countries to claim the citizenship!
What does this mean for Muslims in Assam?
The Muslims who have been excluded from NRC and belong to the non-tribal areas and who are not able to prove their citizenship before Foreigners Tribunals (or higher courts) could be sent immediately to the detention camps.
Does India have a repatriation treaty with Bangladesh, Afghanistan and Pakistan?
Repatriation is the process of sending someone back or returning someone to their place of origin. Once the government determines the nationality of the illegal migrants (as per the Act), ideally, they should be sent back to their home country.
However, India does not have an arrangement or agreement with any of these countries to repatriate migrants back to these countries.
Who are illegal migrants as per current Citizenship Act, 1955?
The Act defines illegal migrant as a foreigner who has entered India without valid passport or travel documents or one who entered with such valid documents but stayed on after their expiry.
What does the Citizenship Amendment Act say about illegal migrants?
The Act provides that all illegal migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities hailing from Afghanistan, Bangladesh or Pakistan who entered into India on or before the 31st day of December, 2014, will not be considered as illegal migrants.
Does that mean that only migrants belonging to Muslim community will be termed as illegal migrants?
By implication, yes. All “illegal migrants” or foreigners without valid travel documents who do not belong to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities will be considered as illegal migrants.
What is India’s refugee policy?
India’s current refugee policy is governed by the Foreigners Act of 1946 that does not even use the term “refugee.” Without a clear-cut policy, Indian governments have, over the years, dealt with different refugee populations depending on their political worldview at the time. For example, India’s treatment of Tibetans conforms to its relationship with China.
Have changes been made in process of citizenship by naturalization?
Yes. One of the qualifications for naturalisation is that the person should have been residing in India or been in service of the government throughout the 12 months preceding application for citizenship. Further, out of the 14 years, preceding this 12-month period, the person should have resided or been in government service aggregately for 11 years.
This particular requirement of 11 years has been reduced to only 5 years for the non-Muslim illegal migrant from Afghanistan, Bangladesh or Pakistan. This is again discriminatory.
What does CAA 2019 do?
This creates an “other” like no other law ever has. This is telling Muslims in India that they will never be able to win the loyalty test. The very fact that there already is a loyalty test only for them in myriad ways is a fact. But the fact that there is now a law that says they will never pass those tests is something they will have to live with forever.
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References (visit cjp.org.in):
(Feature Image Credit – The Hindu)