This article is written by Harsh Vardhan Singh, a student of New Law College, Bharati Vidyapeeth University, Pune. In this article, he aims to explain the misconceptions relating to the Citizenship Amendment Act 2019, which led the Country into Darkness and Chaos.

 

Introduction

There was a widespread discussion going on in the entire country a few weeks before regarding the government’s citizenship amendment and mostly those who were agitating on various grounds were the ones who have misunderstandings related to the Act. The Citizenship (Amendment) Act, 2019 basically seeks to amend the basic structure of how citizenship could be granted to some illegal immigrants. 

The Act will reduce the long twelve years of residence for getting citizenship of India to fast track six years residence. But there are few requisites to get the benefits of this Act and they are that these illegal immigrants should be of Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities who had fled persecution from the neighbouring countries namely Pakistan, Bangladesh and Afghanistan before December 2014. 

People belonging to these religious communities can get fast track citizenship if they have six years of residence except for Muslims as these countries are Islamic-Majority nations or they have written in their Constitution as being an Islamic State. [1] This Act was enacted into law on 12th December though the protests against the CAA started way before. 

But the nation has witnessed widespread violent protests since it has been cleared in the Rajya Sabha as well. Though the concerns of the protesters vary with different communities and areas, much of the concerns of the protesters ostensibly indicates misunderstandings of the actual words of the amendment and provokes the Indian Muslims. 

The protesters had riled up several recent amendments in the law such as revocation of Article 370 and Hon’ble Supreme Court Judgments such as the criminalization of Triple Talaq and Ram Janmbhoomi verdict in an erroneous way that this nation doesn’t accept Muslims. This kind of feeling which riled up average Indian Muslims in a way against the basic idea of the Constitution was feared by many Jurists, Government and Bureaucrats of the nation as well as of the world.

Legislative Background

The Indian Constitution came into power in the year of 1950 which guaranteed legal rights, powers and duties to all the citizens of India at its commencement. India was neither a part of the 1951 UN Refugee Convention nor the 1967 protocol. [2] All the people who have come to India without proper documentation were treated as illegal immigrants. The Citizenship Act was amended in the year 2003 by the NDA led government which prohibited illegal immigrants from getting Indian Citizenship. 

This bill was further introduced to amend in the year 2016 and was passed in the Lok Sabha. However, it could not be passed in the Rajya Sabha as there was a widespread protest in the North-Eastern states as they feared that this amendment would sabotage their indigenous cultural and political rights. The Citizenship Amendment Bill was introduced in 2016 and a Joint Parliamentary Committee was constituted which submitted its report on 7th January 2019. However, due to dissolution of the Lok Sabha, the bill lapsed. 

The Home Ministry introduced the Bill in the Lok Sabha on 9th December 2019 and it was subsequently passed in the Lok Sabha and the bill was further passed by the Rajya Sabha. Finally, the Citizenship Amendment Bill became an Act under the guidelines given in the Constitution of India on the 12th day of December 2019.

What is the need of the Citizenship Amendment Act?

India has always been a peaceful nation and has always stood on and for the humanitarian grounds of the world. By implementing the Citizenship Amendment Bill it has just cleared the same basic idea of standing for humanity. The darkness of uncertainty and illusion has been evaded from the lives of those persecuted in the name of religion in the neighbouring countries of Pakistan, Afghanistan and Bangladesh who have come to India.

These people came to India with a hope that India will provide the long-awaited justice to them from various kinds of religious persecution since there is no other nation which is ready to accept them. Even though 70 years has passed after the partition of India and Pakistan, violence in Pakistan which is officially an Islamic state, against the Hindu minority who are about 1 percent of Pakistan’s 210 million people does not tend to decrease.

In April, an angry crowd destroyed a Hindu temple, they destroyed the idols and also threw the pieces into an open drain. [3] In May, a Hindu veterinarian was alleged of blasphemy in a town, his shop burned to the ground because he was selling medicine wrapped in Islamic religious text, later it was clarified that it was a rumour. [4] The Pakistan Penal Code, the main criminal code of Pakistan, punishes blasphemy against any recognized religion, providing penalties ranging from a fine to death under sections 295-B and 295-C. [5]

During the time of independence, millions of Hindus were left in Pakistan as they couldn’t move out of the Country and many did not want to leave their homeland when the Colonial rulers divided our country into two parts to create an Islamic nation. They did not want to abandon their homes and businesses. But due to the religious persecution which is befalling the Hindus, is leading many Hindus to rethink the choices and fate that left their families on the Pakistani side of the line in 1947.

In quite a similar way like Pakistan, Afghanistan also uses criminal penalty for punishing blasphemy. The punishments are the harshest of all i.e. Capital Punishment for an act of blasphemy by using Sharia as a justification for that punishment. If anyone speaks against the state-religion in Afghanistan i.e. Islam, though as Afghanistan’s Penal Code of 1976 which addresses blasphemy as “Crimes against Religion” but it leaves the penalty on Sharia and as per the Sharia Law, the authorities have the power to give the death penalty. 

The death penalty can be given to anyone, both male and female i.e. if blasphemy is committed by a person of sound mind then he must be punished with the death sentence. The only requisite for the punishment of blasphemy is that a male should be over the age of 18 years and the female should be over the age of 16. If an accused does not recant within three days, the authorities will award the accused with a death punishment. [6]

The Citizenship Amendment Act will not only remove the tag of illegal migrants from the people of these six communities coming from these neighbouring nations but will also provide them with all legal and constitutional rights by getting Indian citizenship after residing in India for five years, instead of the earlier requirement of eleven years. [7] 

The people who get the benefits of this amended act are the ones who have escaped their country mentioned in the act due to religious persecution and since India has always been a peaceful nation and has always stood for humanity, it was a duty of our country to accept these people who were in minority in their country.

Why has the CAA not included few other minority groups?

The CAA has not included few other minority groups like Tamils from Sri Lanka, Ahmedis Muslims from Pakistan etc. and there have been reasons for that. The Tamils have not been included from the Citizenship Amendment Act, 2019 as this Act aims to heal the wounds of the partition of the six minority communities which are mentioned in the act and provide long-awaited justice to them as they had faced religious persecution in their native countries, where Islam is the state religion. 

The CAA takes into account only religious persecution and not ethnic persecution. The Tamils are not religiously persecuted in Sri Lanka. Though with a way it can be taken into account that the Tamils were mostly Hindus and the Sinhalese were Buddhists but the Tamils are not a homogenous group.

Moreover, if Sri Lanka would have added along with the three countries which are already there in the CAA then the Sinhala Buddhists who are already native and Majority in Sri Lanka would fall under the Bill. This would have caused diplomatic and internal tensions in India.

However, it does not mean that the Tamils from Sri Lanka cannot get citizenship in India. They can still apply for Citizenship via LTV through the Standard Operating Procedure i.e. Long Term Visa. [8]

Muslims are not included in the CAA as these three countries are “theocratic” and “Islamic” states and in an Islamic state, at least those who follow the religion of Islam do not face religious persecution. They might face some other persecution but not religious persecution because the religion of that state is Islam.

Constitutional Validity of CAA

The major change that the Central Government has brought to the Citizenship Act, 1955 through the Citizenship Amendment Act, 2019 is special citizenship provision for people belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christianity communities. This particular change has brought into question the constitutional validity of the gazette, stating it to be in violation of Article 14 (Right to equality). 

The Supreme Court won’t strike out CAA, 2019 for its constitutionality for couple of reasons, one being that the exclusive power to legislate ‘foreign jurisdiction’, ‘citizenship, naturalization and aliens’, ‘extradition’ and ‘admission’ into and emigration and expulsion from India rest with Parliament. 

Moreover, the gazette specifically mentions that the citizenship provision is for ‘aliens’ and not ‘citizens’. Although the Right to Equality mentioned in Article 14 of the Constitution is inclusive of aliens in the present situation the State is fulfilling a moral duty, which is also its exclusive right, to allow refugees, which makes it an exceptional case. This is because Right to equality, in the case of ‘aliens’, would only pertain if it is not subjected to any statute/legislation.

One more reason which strengthens the gazette is that at the time of separation, both India and Pakistan agreed to safeguard the rights of minorities. India, through its amendment, is ensuring those rights by giving citizenship to the persecuted minority groups.

CAA and NRC: Is it related or not?

The citizens of India need to know that CAA and NRC are two very distinct topics. All the concerns regarding the constitutional validity of the CAA began to rise due to conflating the two topics. It did not help any community rather it created a sense of fear among the minorities due to the confluence of these two distinct subjects. On December 17th 2019, the Home Ministry in a very clear statement while clearing the doubts of the citizens stated that CAA has nothing to do with NRC. 

The Ministry stated that since 2004, the NRC has different set provisions as guided under the Citizenship Act of 1950. The provisions govern the process of registration of Indian citizens and the issuance of national identity cards to them. CAA is an act which aims to provide citizenship to the people belonging to Hindu, Sikh, Parsi, Christian, Buddhist and Jain who have fled the three neighbouring countries of India i.e. Afghanistan, Pakistan and Bangladesh to escape from religious persecution on them whereas NRC is aimed at deportation of all illegal immigrants irrespective of their religions. 

Furthermore, there are also a set of different statutory laws which were added in 2003 to the Citizenship Act to operationalize the legal provisions. Whilst CAA grants benefit to the refugees of the mentioned communities who entered India on or before 31st December 2014, on the other hand, NRC will aim at registering those who can show residential documentary proof of before 24th March 1971. 

Religious Persecution: The Case of Asia Bibi

Asia Bibi who is a Pakistani Christian woman was convicted of blasphemy by a lower court of Pakistan. The main issue of her conviction was that there were allegations on her of drinking water from the same container from which other Muslim berry-pickers used to drink water. Due to the orthodox and rigid blasphemy laws of Pakistan, the lower court charged her guilty of blasphemy and awarded her the penalty of a death sentence. 

The matter was challenged in the Hon’ble Lahore High Court but was upheld by the Hon’ble High Court. Various petitions were signed for her release, including one which got four lakhs signs. Various governments of other countries appealed to the Pakistan government for her release. In October 2018, the Apex Court of Pakistan acquitted Asia Bibi citing “material contradictions and inconsistent statements of the witnesses” which “cast a shadow of doubt on the prosecution’s version of facts.” [9] 

Despite her release from the Pakistan Supreme Court, the Pakistani government signed an agreement with a political party of Pakistan constrained Asia from leaving the country. Meanwhile, she and her family had to face countless life-threatening issues. After the rejection of a review petition against the apex court’s acquittal in January 2019, Asia could finally leave Pakistan in May 2019. Asia has since found a safe haven in Canada.

Conclusion

Disagreement and Protest are the two factors that nourish the democracy of a State and their non-existence limits a States’ growth. Although, the roots of these factors also play an important role, as they decide whether the factors will amount to nourishment or form deadlock which further causes self-destruction and harm. Similar can be observed in the ongoing protests. The people on roads believe/are made to believe that CAA is an anti-secular law and hits one specific religion. Now the root of protesting being a misunderstanding will only head towards a deadlock. 

Let alone be the method of protesting as it has and will not show any improvement due to its impasse nature, the only way out is budging the court challenging either CAA’s constitutional validity or Government’s action. But the Chief Justice of India has made it clear that you cannot have things in both ways, either approach the courts or continue with the protests which are peaceful no more.

References

[1] In THE CITIZENSHIP (AMENDMENT) ACT, 2019 NO. 47 OF 2019 (http://egazette.nic.in/WriteReadData/2019/214646.pdf).

[2] In the report by UNHCR Global Appeal 2011, https://www.unhcr.org/publications/fundraising/4cd96e919/unhcr-global-appeal-2011-update-india.html.

[3] In the report by Hindu Newspaper, https://www.thehindu.com/news/international/hindu-temple-vandalised-in-pakistan/article18300913.ece.

[4] In the report in BBC, https://www.bbc.com/news/world-asia-48438333.

[5] In the report by Amnesty International July 1994 AI Index: ASA. 33/08/94,https://www.amnesty.org/download/Documents/184000/asa330081994en.pdf

[6] https://www.refworld.org/docid/48d5cbf4c.html.

[7] In THE CITIZENSHIP (AMENDMENT) ACT, 2019 NO. 47 OF 2019 (http://egazette.nic.in/WriteReadData/2019/214646.pdf).

[8] https://pib.gov.in/newsite/PrintRelease.aspx?relid=108152.

[9] Criminal Appeal No.39-L of 2015 of the Supreme Court of Pakistan; In Mst. Asia Bibi Vs. The State etc.(http://pid.gov.pk/site/news_detail/333).