- Abstract
The person residing in India has some special rights, especially the citizens in matters of employment and education, etc. which are considered to be important for the better life of any person but it becomes more than necessary to have citizenship in such states where all the boarders are surrounded by foreign boundaries such as Pakistan, Bangladesh, and Afghanistan. As due to the invasion people from these countries is a common occurrence; such occurrences cause hindrance to the state for the implementation of policies as the resources are not distributed as how they are to be assigned. On the other hand some people try to defy the territories and become the illegal immigrants of the countries. This research tries to understand how INDIA has dealt with this aspect in its recent amendment to the Citizenship Act enacted in 1955. Along with it tries to determine grounds provided by the presenting party in the parliament for approval of such a bill which has various lack of legality and the aspect of religion being ignored or undertaken into the suggestion. This research will also try to analyze the objection put forth by the parties in the parliament as well as in courts wherein it has been challenged.
- Keywords
Citizen, Citizenship Act, Art 14 of Indian Constitution, CAA, citizenship, Religion, Right to Equality, Right to Life, Citizenship Amendment Bill 2019(CAB).
- Research methodology
This paper is descriptive and the research is based on secondary sources for the deep analysis of the effect of the Citizenship Amendment bill on society from the aspect of religion. Secondary sources of information like newspapers journals and websites are used for the research.
- Review of literature
The researcher has referred to various articles published in the newspaper cited below along with the various other sources such as the book authored by M.P.JAIN along with the following statutes for the reference for the provisions and their enforcement–
– Indian Constitution, 1950
– Citizenship act, 1955
– Citizenship Amendment Bill, 2019
– Citizenship Amendment Bill, 2003
- Introduction
A citizen is a fundamental part and essential key for the state to run and function. In today’s world, the state is not only comprised of citizens but also thousands of individuals who are not part of the state i.e. migrants legal or illegal, and foreigners who are visiting or residing. Among such individuals, the citizen enjoys special rights as under Article 19, article 16, etc. But what if the issues as to who is a citizen arises? Who will decided who is citizen and who is not? What will be the responsibility of the state to provide for such rights how will the state grant the citizenship?
To provide for solution of such problems the Constitution had not only undertaken the matters relating to the citizenship before the Constitution came into force i.e. 26 Jan 1950 but also after its enforcement was announced. It empowered the parliament with the power to make the legislation to govern the citizen after the Constitution came into force after which the Parliament exercised such power under Article 11 of the Constitution and framed the Citizenship Act of 1955 Which has been getting amended from time to time such as in 1976, 2003, and now the proposed bill of 2019. But after observation of this bill some issues can be found in the bill and which are also challenged by the community before the Supreme Court through the Petition in – Indian Union Muslim League v Union of India[i]. Wherein the Issues as to equality and religious ground was up-fronted by the petitioners which will be further analyzed in this particular research comparing to the other countries and as to their exclusion in bill poses question as to Citizenship Amendment Bill
- Terminologies used
- CITIZEN-
The citizen is person which is considered to be belonging and responsibility of the state to which he belongs. The Constitution of India provides for the single citizenship of an individual which is granted by birth, Registration, and naturalization as provided under the Citizenship Act.
The citizens are guaranteed some fundamental rights which are not otherwise available to other persons.
- illegal mIgrantS [As per CA,2003 Amendment]
An illegal migrant as defined by the Foreigners Act, of 1946 is a foreigner who has
– Entered the country without valid travel documents like passport and visa or
– Entered with valid documents but stays beyond the permitted period allotted to him by the authority.
Illegal migrants may be put in jail or deported under the Foreigners Act of 1946 and the Passports Act 1920of prohibits the entry of the individual considering it illegal.
- Persecution
The term Persecution refers to the violation of discrimination based on caste religion or race against an individual. One of such type is religious persecution.
- What’s the change brought by the Citizenship Amendment Bill 2019?
Previously the definition had no particular religion involved but CAB, 2019 has tried to include the following definition for the illegal migrants adding proviso to the section 6B Of the Citizenship act. Stating that the following person shall not be considered to be illegal immigrants –
(a) Those who Belong to the Hindu, Jain, Parsi, Sikh, Buddhist, or Christian community and
(b) They are from Afghanistan, Bangladesh, or Pakistan as the origin and
(c) It only applies to migrants who entered India on or before 31 December 2014.
Adding that certain areas in the North-East are exempted from the provision.
It also stated that the period for such naturalization will be reduced from 11 years to 5 years to be considered for the application of such individual as provided under the newly added section.
In addition to that if the individual has any previous pending legal proceeding against him instituted it shall be dismissed and disposed of. Concluding that, He will no longer be an illegal migrant under the Passports Act and the Foreigners Act.
- Method
The researcher has tried to analyze the bill with a view to analysis it from the religious point of view which was prominently put forth by the parliament in the debates
The following issues can be observed after reading and analyzing it.
- Issues as to Bill with Regard to religion
It is to be significantly noted that the parliament has used particular religions and neither provided the category so included with any distinct class nor gave any reason for them to be included other that to be classified under religiously persecuted person. They have deliberately not used the word minority as it is free from such religious discrimination to avoid the clutches of the judiciary or judicial review.
6.1.1 It violates the Fundamental rights.
A. Right to equality with other religions–
As the bill includes only Hindus, Jains, Buddhists, and Christians it tends to exclude Muslims and other religions from such opportunity for inclusion into the state.
It is argued before the court that Art 14 of the constitution provides equality to all including non-citizens[ii]. Article 14 of the Constitution has equality before the law and equal protection of the law. But the Citizenship Amendment Bill is violating Article 14 by treating individuals unequally based on not only religion but also
(a) Their country of origin
(b) Date of entry into India, and
(c) Place of residence in India.
It does not fulfill the test for reasonableness[iii] as provided by the Supreme Court in case of E. P. Royappa[iv] which is to be followed by the legislation that is to have
- A Reasonable differentia
- The nexus of such differentiation with the object of the act
The petitioners in the case Indian Union Muslim League v Union of India[v] argued that there is no rational nexus between the differentia and the aim sought. Though in assembly it is argued that Muslims are not being discriminated against based on religion and that the option for naturalization as given in Citizenship act 1955 is still applicable for them but what they fail to understand is that the period of such procedure remains as it is for others i.e. 11 years and previous 12 months of residence making them vulnerable to the conditions of removal form the protection of state. Creating a lack of facilities provided for the same thing creates inequality for them to have a safe and secure environment.
On the other hand it does not stand true to the test of arbitriness as provided by the Hon’ble Supreme Court in case of Maneka Gandhi[vi] that where it was held that where there is arbitriness in the law it is always in violation of the equality as well as rule of law.
b. Right to life and profess any Religion–
In National Human Rights Commission vs. State of Arunachal Pradesh[vii], the question was about Chakma refugees, who were undocumented immigrants from Bangladesh. The court observed that the fundamental right to life and liberty guaranteed by Article 21 of the Constitution is also available to Chakmas, though they were not Indian citizens. Citizenship is a question of life and death to such people as they can be exposed to legal proceedings that may result in them being detained for an unknown period.
As the bill has provided for the concession of the period to the particular religions it will encourage the immigrants to change their faith only to get the benefits for their better future unwillingly and agonists their will violating Articles 25 and 26 of the constitution being prone to the situation posed by them. Which lastly questions the agenda behind such enactment.
6.1.2 Exclusion of other Religions–
According to Home Minister Amit Shah, “India cannot shut its doors to people who have been persecuted by religious fanatics.” He defended the exclusion of Muslim migrants from Bangladesh, Pakistan, and Afghanistan saying Muslims are not likely to face religious persecution in a country where they are in the majority[viii].
But contrary to such statement; over the years there have been reports of persecution of Ahmadiyya Muslims in Pakistan While by a Constitutional amendment Pakistan has declared Ahmadiyyas to be non-Muslims[ix], and the murder of atheists in Bangladesh[x].
It should also be included that the immigrants not only include Muslims but also others who have fled from Sri Lanka to India after facing religious persecution. So only including those six categories of religion even without providing a proper explanation as to the ground of persecution is not sufficient.
The Citizenship Amendment Bill also fails to consider the Jews and atheistic Bangladesh migrants who have fled in the hope of roof due to the challenges faced by them and assaults committed against them.
- As to Exemption from territories
If the religions were decided after considering the violence faced by them in neighboring countries having territorial connection with India then India shares a border with Myanmar, which has had a history of persecution of a religious minority, of the Rohingya Muslims[xi].Over the years, there have been reports of both Tamil Eelams and Rohingya Muslims fleeing persecution from their respective countries and seeking refuge in India[xii]. Nepal, Myanmar and Bhutan which shares the boundaries with India and has good international relation have been excluded from such facility.
If not on a territorial basis, the other difference possible is of the past relations or past partition as Pakistan and Bangladesh have been previous parts of undivided India it can be included or can be reasoned but the inclusion of Afghanistan clearly shows no necessity to such reasoning.
Amit Shah said that “the Bill would not have been necessary if the Congress did not agree to Partition based on religion”[xiii]. But what’s being ignored here is the threat the formation of Pakistan was done based on religion not of India as it has been stated in the preamble of the constitution that India is a secular[xiv] state.
The bill also does not protect all religious minorities, nor does it include all the neighboring countries. It ignores issues like The Ahmedia Muslim sect facing discrimination in Pakistan. Rohingya Muslims and Hindus face persecution in the neighboring boundaries of Burma and Hindu and Christian Tamils in the neighboring lines of Sri Lanka.
Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to religious minorities from these countries have been excluded from the Bill.
6.2 DATE of Enter is ambiguous
It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.
Providing such date a retrospective effect will create chaos with regards to the NRC, which is another debatable concept in the country.
- Suggestions & Conclusion
Though the initiative is of great and noble cause of ending the misery of the illegal immigrants of the country what should not be overlooked is that such classification should not be done only by religion. But also to the factor of having necessity of granting such acceptance to the religiously persecuted communities who need the shelter and refuge. And that not all the mentioned religions can be included in citizenship as it will create a lack of resources in that state so before providing such mass citizenship. The parliament has to look into the matter whatever or not state has resources to fulfill their basic needs and further accommodation into the country as present state are unable to keep up with demand of such high population all at once. And also into the willingness of other states if they are decided to be migrate form one state to other in case state unable to accommodate them into the community.
After analyzing the situation with to Citizenship Amendment Bill it can be seen that the Citizenship Amendment Bill is not properly analyzed as it lacks date as to other communities and their number into the affected states and will need further alterations without ignoring effects of such amendment if enforced into the future. This conclusion was headed due to a lack of discussion on such topics, vague reasoning given by the assenting parties and lack of responsibility towards other immigrants which are being ignored and secluded.
According to Amartya Sen the Nobel laureate economist she recently quoted that “when a nation is being divided for political opportunism a powerful voice is needed for the betterment of the future”[xv].
It is also argued that such passing of legislation may create a bad influence on the country in the national globe as it hampers the human rights of the other immigrants by providing such ambiguous policy. The United Nations High Commissioner for Human Rights (OHCHR) also called the amendment fundamentally discriminatory in the context of human rights. But what is to be kept in mind is that citizenship is one such topic which can never be sufficient to everybody as it is not possible to satisfy everybody and it will never be enough to add all the immigrants into the citizenship as it’s unending. In fact it will encourage such illegal immigration from other countries into India for better opportunity or better life.
Sifa Paigambar Inamdar
Savitribai Phule Pune University.
[i] Indian Union Muslim League v Union of India 2019WP (C) 1470/2019
[ii] R.K. Garg And Ors. V.. Union Of India 1982 133 ITR 239 SC
[iii] E. P. Royappa v. State Of Tamil Nadu & Anr 1974 AIR 555
[iv] Ibid (iii)
[v] Supra (i)
[vi] Maneka Gandhi v. UOI AIR 1978 SC 597
[vii] National Human Rights Commission vs. State of Arunachal Pradesh 1996 SCC 1 742 WP 720/1995
[viii] India today web desk “What is CAB-all you need to know” India today 12 Dec 2019
[ix] 2nd constitutional Amendment of Pakistan, 1974.
[x] The guardian “the Bangladesh Murders”- 11 Jun 2016 https://www.theguardian.com/world/2016/jun/11/bangladesh-murders-bloggers-foreigners-religion.
[xi] Myanmar Rohingya: “What you need to know about the crisis”, BBC News, 23 Jan 2020 https://www.bbc.com/news/world-asia-41566561
[xii] TNN “Why India is refusing refuge to Rohingyas”, Times of India, September 6, 2017, https://timesofindia.indiatimes.com/india/why-india-is-refusing-refuge-to-rohingyas/articleshow/60386974.cms.
[xiii] ET Online “CAB 2019 what is it and why is it a problem” Economic times of india.31 Dec 2019 https://economictimes.indiatimes.com/news/et-explains/citizenship-amendment-bill-what-does-it-do-and-why-is-it-seen-as-a-problem/articleshow/72436995.cms?from=mdr
[xiv] 42 and amendment, Indian constitution 1974.
[xv] Scroll staff “Powerful voice needed when nation is divided and unity destroyed” Scroll.in-10 July 2022. https://scroll.in/latest/1027980/powerful-voice-needed-when-nation-is-divided-and-unity-destroyed-says-amartya-sen