Title: Evaluating the Provisions of Citizenship Amendment Act through the Lens of International Law
Abstract:
Citizenship originated in Greece as a term for those who owned property. It slowly evolved into the most privileged form of nationality by amassing voting rights, feudal rights and also obligations and tax liabilities. This concept has always remained at the forefront of the making of a socio-political world. Today, the same has become the only way to protect fundamental human rights. Right to life, right to livelihood, right to education, right to health care, right to sleep, right to movement, right to trade and profession, you may name any right, they all stem from citizenship. With citizenship comes the right to enjoy constitutional rights, the sense of belonging, the national identity and several fundamental rights of life. Therefore, citizenship is an important aspect for every man alive. It is in this context that the 6th amendment to Citizenship Act 1955, needs to be looked at. The 6th amendment brought to the Citizenship Act 1955 has been criticized as anti-Muslim, anti-migrant, unconstitutional, arbitrary for discriminating on the basis of religion. The proviso in the amended act suggests that only certain persecuted minorities will no longer be considered as illegal migrants post the implementation of the said Act. The critics consider the proviso to be contentious as it excludes Muslim illegal migrants from the ambit of being provided with Indian citizenship. The International Law speaks about citizenship under the larger heading of nationality. The two concepts refer to the relationship of people to their own territory and how the laws of their territorial land apply to them. In a world of political ideology, run in a political manner, citizenship is the most prestigious form of fundamental right as the citizens enjoy civic and political rights like no others despite right to life and protection against abuse of power is provided to every person, citizen, resident, stateless persons, refugees, illegal migrants, asylum seekers, aliens. This paper takes a closer look at whether the amendment violates the international law or not? India has actively taken party to numerous international agreements, conventions and treaties, thus, has an international obligation to adhere and conduct in a manner thus agreed to. By bringing to ground such a legislation will the refugees, illegal migrants, asylum seekers, aliens, stateless persons benefit or will their rights be mishandled?
Keywords:
Citizenship Amendment Act (CAA), International obligations of India, right to seek asylum, Human Rights, Refugee Rights, National Register of citizens, religious discrimination, minority rights.
Introduction:
India is a federal nation as conferred by its constitution. From the time of independence up until now, the powers are divided between Centre, state and local governing bodies. As a result of the federal structure citizenship falls under the Centre’s ambit to govern. Citizenship is listed as the 17th matter in the List-I of Seventh Schedule, thus as per powers provided by the constitution under Article 246 the Parliament takes charge of the laws relating to citizenship, its termination, amendment, issues relating to refugees, asylum seekers, illegal migrants, stateless persons, aliens. An empowered parliament took the decision to bring the 6th amendment to Citizenship Act, 1955 in the year 2019. Ever since, the CAA, 2019 has brought in much debate. This paper looks at the legality of the citizenship amendment made in 2019 with respect to the international obligations of India. Despite India not party to the Refugee convention of 1951 and its protocol, India still is party to several other international treaties, agreements including its latest endorsement it made in 2018 December – Global Compact for Safe and Orderly and Regular Migration. Are refugees, asylum seekers, illegal migrants new to India? The answer is no. From her birth till now, India has never witnessed a more colossal wave of migration than the one during partition. Migration is an old wound, while the migrants, refugees, asylum seekers her old frenemies. There have been numerous instances when India has swallowed in herself the over-pouring number of refugees, asylum seekers, migrants from its neighboring countries, but still continues without refugee laws. Remember the Rohingyas? Remember the Tibetan refugees? Remember the Sri-Lankan Tamil refugees? But, do you also remember their deportation? By not signing an international convention, is India ill-treating and rendering them stateless? Is the current amendment a form of refugee regulation or a violation of fundamental principles of international law and thus in violation of fundamental human rights of aliens, asylum seekers, illegal migrants, refugees, stateless persons?
Research Methodology:
This paper is doctrinal research and is descriptive in nature. The theoretical study has been conducted on the primary sources – laws, statutes, and legal literature pertaining to the subject matter of the research paper. The secondary sources of data like journals, newspaper articles, websites, research papers, have been used in support to bring rationale to the argument.
Review of Literature:
CAA 2019 Contravenes Non-Refoulement Principle:
In Nandita Haksar v. State of Manipur; & Ors the High Court stated that though India may not be a signatory to the Refugee Convention of 1951, its obligations under the international/covenants, read with Article 21 of our Constitution, enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere. The court went on to say that the non-refoulement in context of Article 21 is of great significance. India which is party to several human rights treaties has an obligation to adhere to the principle of non-refoulement. The principle of non-refoulement in the context of international human rights, provides that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status. The scope of the principle as explained by the OHCHR, extends to all forms of removal or transfer of persons whether the person is a citizen, national, stateless, or falls under a migration status. It further applies in cases when ill-treatment or other serious breaches of human rights obligations have been committed against the persons. However, it is to be noted that for the principle to be applied in India there need not be a special or exclusive domestic law governing refugees, the Constitution provides for its applications under the umbrella of Article 21. In this context when we look at the Citizenship Amendment Act, 2019 there lies a clear violation of the non-refoulement principle under clause (b) of section 2 of the CAA, 2019. It excludes the Muslim community while removing the status of illegal migrants from the communities of Hindus, Sikhs, Buddhists, Jains, Parsi or Christians. It not only excludes the Muslim community persons, but also turns a blind eye to all the persons taking refuge in India from other neighboring countries by removing the label of illegal migrants from the selected religious groups. Hence, the discrimination of the certain religious groups leads us to the next question as to what would India do with such persons? Most likely the rules of the Passport (Entry into India) Act and the Foreigners’ Act will be applied. Section 5 of the Passport Act, states that any person who in contravention of any rule under the Act will be removed from India. Further as per the Section 3 of the Foreigners Act movement of illegal migrants within India will be prohibited, regulated or restricted by the Central government. If not for these regulations owing to the history, the ruling government is capable of sending the illegal migrants to detention centers. The use of detention centres to detain illegal migrants has been legally allowed as a result of its presence found in section paragraph 11 under point (e) of sub clause (2) under section 3 of the Foreigners Act. It allows for operation of detention centres.
CAA 2019 does not meet International Obligations:
India with such an amendment is prone to violate other international obligations which come under the Universal Declaration of Human Rights, International Covenant of Civic and Political Rights. The CAA 2019, violates the following Articles of UDHR:
Article 2 of the UDHR provides for non-discrimination on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, jurisdictional or international status of the country or territory to which a person belongs. By bringing in the classification between the non- Muslims and others, there is a clear discrimination on the grounds of religion which is prohibited by the UDHR.
Article 3 of the UDHR states that everyone has the right to life, liberty and security, however the amendment violates that right to life which includes livelihood, their liberty and security by such discriminatory classification.
Article 5 of the UDHR states that no one must be subjected to torture, cruelty, inhuman treatment, degrading treatment and punishment, however by declaring the non-Hindus, Sikhs, Buddhists, Parsis, Christians and Jains as citizens under the amendment put the others in a disadvantaged position and make them applicable under the Passports (Entry into India) Act, The Foreigners Act and such domestic legislations, which subject the refugees, asylum seekers, illegal migrants, aliens, foreigners to inhumane treatment.
Article 7 of the UDHR entitles equality to people without discrimination and protects against discriminatory violations, however the CAA 2019, discriminates the persons on the basis of religion.
Article 9 of the UDHR states that no one shall be arbitrarily arrested, detained or exiled, but, under the current domestic laws regulating the status of refugees, illegal migrants, aliens, foreigners, and asylum seekers in India, detention allowed.
Article 15(2) of the UDHR states that no one shall be arbitrarily deprived of his nationality or denied the right to change his nationality. However, CAA violates the right to nationality of such discriminated persons.
The CAA 2019, violates the following Articles of ICCPR: (International Covenant on Civil and Political Rights)
By including only, the Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians and including only the migrants from Afghanistan, Bangladesh and Pakistan the CAA 2019 violates Article 2 of the ICCPR, which states that State Parties to the Covenant must respect and ensure that all individuals within its territory and the rights recognized in the covenant applied to without any distinction of race, color, sex, language, religion, political, other opinion, national, social, property, birth or other status. Also, violates Article 26 which entitles equal protection of law to all persons without any discrimination.
It violates the Article 3 by not providing equal civil and political rights to men and women present under the covenant. By providing for detention under domestic laws to those recognized as illegal migrants the Article 6 right to life, Article 7 right to not be subjected to torture, cruelty, inhumane treatment, derogatory treatment or punishment, Article 9 right to not be arbitrarily arrested or detained, Article 10 right of persons whose liberty has been taken away to be treated with dignity and Article 12 which provides for freedom of movement are violated.
Inadequacy of domestic laws for issues relating to refugees:
Indian legislations pertaining to the laws governing refugees clearly show that definitions of such persons also lack clarity. There are several legislations in India in combination which regulate and attempt to define such persons and in order to serve the purpose for the respective law. Illegal migrant has been defined in Illegal Migrants (Determination by Tribunals) Act 1983 under section 3(c) as a person who has entered into India on or after the 25th day of March, 1971, is a foreigner, has entered into India without being in possession of a valid passport or other travel document or any other lawful authority in that behalf.
Citizenship Act, 1955 goes on to define illegal migrant under section 2(b) as a foreigner who has entered India without a valid passport or other travel documents and such other document as prescribed by the authority or prescribed under any law; or with a valid document but remains therein beyond the permitted period of time. The 2019 CAA has specified that persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who have entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 will no longer be held as illegal migrants.
There are no domestic law or regulation defining refugee. The word foreigner in The Foreigners law 1946 is defined under section 2(a) as a person who is not a citizen of India. The Illegal Migrants (Determination by Tribunals) Act 1983 also uses the same definition for the purpose of its regulation. As for the asylum seekers, there are no laws in place and no definitions of the same found in Indian legislations. This leads to the question of whether illegal migrant definition acts as an umbrella to cover for refugees, asylum seekers, aliens, stateless persons and illegal migrants?
It must be noted that the Constitution of India also provides for citizenship regulation laws in Part II, from Article 5 to Article 11. CAA, 2019 amendment crosses the ambit of Article 6 and Article 7 of the constitution. The Article 6 recognize that any person coming to India after 19th July 1948 needed to be registered for such Indian citizenship. The Article 7 goes on to state that any person who has migrated to Pakistan from Indian territory post 1947 and returned to India under permit for resettlement will be considered as migrated after 19th July 1948. If we note, the constitution does not go on to discriminate on the basis of religion in which way the CAA 2019, intends to do.
The Indian Judiciary has interpreted these definitions. In Nandita Haksar v. State of Manipur &Ors, the Court defined asylum seekers as a person who is forced to leave his/her country in order to escape war, persecution or natural disaster, by declaring them to be separate from migrants.
In Babul Khan v. State of Karnataka & Anr the Court held that illegal migrants are not refugees. They are those people who migrate to a country in violation of the immigration laws, and who have not acquired the citizenship of India, or continued their residence without any sort of legal right to live in our country. The Court goes on to identify even the children born to parents who are illegal migrants, or any one of them is illegal migrant is also not a citizen of India automatically by birth.
While the Karnataka High Court ruled out the criteria of birth, the Court in Abdul Samad v. State of West Bengal held that domicile does not mean a temporary habitation which a person has fixed for himself and his family, but, a permanent intention to make it his permanent home. Three kinds of domicile were identified: domicile by birth, domicile by dependence, domicile by choice.
Thus, we can see that the judiciary has tried to make a distinction between asylum seekers, refugees and illegal migrants. However, the laws regulating such persons has been used in combined form.
Suggestions & Conclusion:
India lacks explicit laws regulating issues related to refugees. The United Nations Human Rights Office in one of the media reports stated that India needs a robust system to address the issues faced by asylum seekers. Therefore, the primary step must be to bring in a domestic law. Apart from just bringing in a domestic law it must consider the prospect of the international conventions for refugees as they provide for a mechanism to ensure the refugees live a productive life. In Nandita Haksar v. State of Manipur &Ors the court observed that though India is not a signatory to the Geneva Refugee Convention, 1951, and the New York Protocol of 1967, it is party to the Universal Declaration of Human Rights, 1948. The court goes on to state the applicability of Article 14 which provides right to seek and to enjoy in other countries asylum from persecution to everyone. India signed to be party to the International Covenant on Civil and Political Rights, 1966. The court holds that the Covenant was entered into to recognize the fact that certain inalienable rights of all members of Citizenship is connected to civic rights. The court in the case went on to even recall that India endorsed the Global Compact which has the key-objectives, to ease the pressure on host countries; enhance refugee self-reliance; expand access to third-country solutions; and support conditions in the countries of origin for return in safety and dignity. Thus, suggesting that India promote international peace and security apart from fostering respect for international law and treaty-obligations reinstating the importance of Article 51of our Constitution. Thus, the need of the hour is to ensue upon a legislation for the security of the refugees and such persons, for with every passing day the number of refugees is increasing. The UNHRC has shown a steady rise of refugees and internally displaced persons numbers. It is to be noted that the Prime Minister of India has during several occasions called for “Vasudhaiva Kutumbhakam” which translates into a worldview that embraces global brotherhood. It is this that needs to transcend into regulations so that humanity is not in the clutches of civic and political rights.
Name: G Sai Darshana
College: St. Joseph’s College of Law