Citizenship (Amendment) Act, 2019
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The article has been written by Ayush Verma, a 2nd year student of RMLNLU, Lucknow. The article discusses the ways for acquisition of citizenship under the Citizenship Act, 1955 and provides an analysis of the Citizenship (Amendment) Act, 2019.

The Parliament has passed the Citizenship Amendment Act, 2019 (CAA) on 11th December. In the amendment, persons belonging to minority communities of Hindus, Jains, Sikhs, Christians, Buddhists and Parsis from Afghanistan, Pakistan and Bangladesh, who have entered into India on or before 31st December 2014 have been excluded from the definition of “illegal immigrants”, given in Section 2(1)(b) of the Citizenship Act. It has also reduced the period of acquisition required for getting Citizenship through Naturalisation from eleven years to five years for these communities. The amendment is facing several backlashes across India, majority being from the North-eastern States. The main objection is regarding the religious inclement of the amendment, as violative of Article 14 of the Constitution which guarantees the right to equality. 

In Assam, the amendment has started a lot of violent protests as it is in conflict with the Assam Accord of 1985, which asks for identification and deportation of illegal immigrants who have come to Assam from Bangladesh, in order to protect their culture and tradition. Several petitions have been filed in the Supreme Court challenging the constitutional validity of the Citizenship (Amendment) Act, 2019.

What is the Citizenship Act, 1955?

The Citizenship Act, 1955 specifies the ways by which Citizenship of India can be acquired. It says that Citizenship in India can be acquired by five ways: by birth, by descent, registration, naturalisation (increased residence), and by the incorporation of a territory into India.

What are the ways for the acquisition of Citizenship under the Act?

Citizenship by birth – Section 3

Every person shall be a citizen of India by birth who is born in India:

  • On or after 26th January 1950 but before 1st July 1987.
  • On or after the 1st July 1987 but before the commencement of the Citizenship (Amendment) Act, 2003 where one of his parents is a citizen of India at the time of his birth.
  • On or after the commencement of the Citizenship (Amendment) Act, 2003 where― 

(i) both of his parents are citizens of India; or

(ii) one of his parents is a citizen of India and the other is not an illegal migrant at the time of his birth.

A person shall not be a citizen by virtue of their birth where:

  • His father or mother possesses such immunity from suits as is provided to an envoy of foreign sovereign power authorized to the President of India and is not a citizen of India; or
  • His father or mother is an enemy alien and his birth happens in a territory occupied by the enemy.

Citizenship by Descent – Section 4

Every person shall be a citizen of India by descent who was born outside India:

  • On or after 26th January 1950 but before 10th December 1992 if his father is an Indian Citizen at the time of his birth.
  • On or after 10th December 1992 if either of his parents is an Indian citizen at the time of his birth.

However after the commencement of the Citizenship (Amendment) Act, 2003, a person shall not be considered a citizen of India if their birth is not registered at an Indian consulate within one year of his date of birth, or with the permission of the Central Government, after the expiry of the said period. The application of registration shall contain an undertaking from the parents declaring that their minor child does not hold a passport of another country.

Position of minor

A minor who is an Indian Citizen under this section and is also a citizen of some other country shall cease to be a citizen of India if he does not renounce the citizenship of that country within six months of attaining the full age.

Citizenship by Registration – Section 5

Any person may be registered by the Central Government as a citizen of India, on his application, if such person is not an illegal immigrant and belongs to the following categories:

  1. Who is of Indian origin and is ordinarily resident of India for seven years before making an application under Section 5(a).
  2. Who is of Indian origin and is ordinarily resident in any country or place outside undivided India.
  3. Who is married to a citizen of India and is ordinarily resident in India for seven years before making the application.
  4. Who is a minor and his parents are citizens of India.
  5. Who is of full age and capacity and his parents are registered as citizens of India.
  6. Who is of full age and capacity, and if he himself or either of his parents was an earlier citizen of Independent India, and has been residing in India for one year before making an application for registration.
  7. Who is of full age and capacity and registered as an Overseas Citizen of India for five years and has been residing in India for one year before making an application.

For the purposes of clauses (1) and (3), a person is deemed to be ordinarily resident if he resided in Indian for twelve months immediately before making the application and for the six years in the aggregate in the eight years preceding twelve months.

Citizenship by Naturalisation – Section 6

A foreigner who is not an illegal immigrant and is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in aggregate in the fourteen years immediately preceding twelve months) can get Citizenship of India by Naturalisation subject to other qualifications as specified in the Third Schedule to the Act.

However, if in the opinion of the Central Government, the applicant has rendered some distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions specified in the Third Schedule.

Citizenship by incorporation of territory – Section 7

Where a territory becomes a part of India, the Central Government may by its order specify the persons who shall become citizens of India because of their connection with that territory.

Who are Illegal Immigrants under the Citizenship Act, 1955?

According to Section 2(1)(b) of the Act, “illegal immigrant” means a foreigner who enters India:

  1. Without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
  2. With valid documents but stays in India beyond the permitted period of time.

Laws governing Illegal Immigrants

Illegal immigrants can be deported or imprisoned according to the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946. These Acts provide for regulation regarding entry, exit and residence of foreigners by the Central Government.

Foreigners Act, 1946

Under Section 3(2)(c) of the Foreigners Act, the Central Government has the power to order the deportation of a foreign national. This power to deport or identify foreign nationals has also been given to State Governments, Union Territories and the Bureau of Immigration.

Passport (Entry into India) Act, 1920

Section 5 of this Act says that the Central Government has the power to directly remove any person who has entered into India illegally. It covers such a person who has entered without a Passport or has not complied with the conditions of the Passport.

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What was the need for amending the Citizenship Amendment Act, 1955?

The need for amending the Act was to give an identity to a certain specific class of illegal immigrants. There are thousands of people who have faced religious persecution in the countries of Afghanistan, Pakistan and Bangladesh. As a result of which, they fled to India to get a safe haven. Before this Act, these immigrants were not allowed to apply for Indian Citizenship as they came to India illegally. Also, the previous Act did not allow people to get Citizenship by Naturalisation unless they are able to show that they have been residing in India for eleven years. So the Amended Act seeks to give these people Indian Citizenship who have come to India after facing persecution in the three countries.

There was also no provision to cancel the registration of an Overseas Citizen of India (OCI) where such a person has violated the provisions of the Act or any other law for the time being in force, and the opportunity of being heard was also not available to them. Therefore, the 1955 Act needed reforms.

What is Citizenship (Amendment) Bill, 2016?

The Citizenship (Amendment) Bill, 2016 was brought to change the definition of illegal immigrants. The Bill provided for citizenship to illegal migrants from Afghanistan, Bangladesh and Pakistan who belonged to these religions: Buddhist, Hindu, Jain, Sikh, Parsi or Christian. The Bill also reduced the number of continuous years of stay in India that is needed to get Citizenship by Naturalisation from eleven to six years. The Bill added one more ground for the cancellation of registration of Overseas Citizenship by the Central Government under Section 7D of the 1955 Act i.e if the OCI has violated any provisions of this Act or any other law for the time being in force.

Was the bill passed by Lok Sabha?

The bill was introduced in Lok Sabha on 19th July 2016. It was then referred to a Joint Parliamentary Committee, which submitted its report on 7th January 2019. The bill was subsequently passed by the Lok Sabha on 8th January. It was referred to Rajya Sabha but consequently, due to the dissolution of 16th Lok Sabha, the bill lapsed.

What is the Citizenship (Amendment) Act, 2019?

The Citizenship (Amendment) Act, 2019 seeks to amend the Citizenship Act, 1955 by giving citizenship rights to illegal immigrants, belonging to certain religious minorities who have entered into India on or before 31st december 2014, after facing persecution in the countries of Pakistan, Afghanistan and Bangladesh. It has also relaxed the time limit for getting Citizenship by Naturalisation from eleven years to five years for these communities. The amendment has also made new provisions regarding OCI cardholders.

Investigation Bureau, from his records, gave a count on 31,313 people who are going to be the immediate beneficiaries after this amendment, among whom Hindus constituted the largest chunk, 25,447, followed by Sikhs at 5,807, Christians at 56, and Buddhists and Parsis numbering only two each.

It was passed by the Lok Sabha on 10th December and by Rajya Sabha on 11th, and finally after receiving the assent of the President on 12th December has become an Act. However, it is yet to come into force subject to the notification of the government.

Who all are covered under the bill?

The amendment covers illegal immigrants belonging to six communities, who are Hindus, Sikhs, Jains, Parsis, Christians and Buddhists from Afghanistan, Pakistan and Bangladesh, and who have entered into India on or before 31st December 2014. Persons belonging to these communities who have entered into India illegally (i.e. without passport/other documents or have been staying beyond the permitted period) would be entitled to get Indian Citizenship. In 2015, changes were also done in the Foreigners Act and Passports Act to allow non-muslims refugees from these countries to stay back in India even if they entered without valid documents. The government has favoured these communities on the basis that these are persecuted minorities in the three Countries.

Who all are left out?

The amendment has left out illegal immigrants belonging to the Muslim Community of Afghanistan, Pakistan and Bangladesh. Although Muslims constitute the largest minority religion of India, they have not been given rights to acquire citizenship similar to the non-muslim communities. It has also not recognised Sri Lankan Tamils and Rohingya Muslims in Myanmar who face religious persecution in their countries. Also, it has no provision for Muslim sects such as Ahmadiya and Shia who also face persecution in Pakistan.

Which states are given exemptions?

Seven North-eastern states have been given exemptions from the amended provisions. The Act says “Nothing in this section shall apply to tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under the ‘Inner Line Permit’ (ILP) notified under the Bengal Eastern Frontier Regulation, 1873.” The tribal areas that are excluded include Karbi Anglong in Assam, Garo Hills in Meghalaya, Chakma district in Mizoram, and Tribal Areas district in Tripura. The areas that fall under the “Inner Line Permit” are Arunachal Pradesh, Mizoram and Nagaland. This means that to enter these areas or pass through them, the Indians from other states would have to get “Inner Line Permit. It is being feared that Manipur might get affected most due to the Amendment, therefore, Home Minister Amit Shah has announced to bring Manipur under the ILP. However, Chief Minister of Sikkim P S Tamang had written to Amit Shah asking for an exemption from the Amendment, underlining the Constitutional safeguard under Article 371(F) which governs the state of Sikkim and provides it special status.

What is the position of Overseas Citizens of India under the Act?

The Amendment has added that a foreigner may apply for registration as OCI if they are of Indian Origin (i.e former Citizen of India or their descendants) or the spouse of such a person is of Indian Origin. It also seeks to allow the cancellation of their OCI registration if there is a violation of any law as notified by the Central Government. However, the amendment does not provide any guidance on the nature of laws that may be notified by the Central Government for the applicability of the provision. Also, giving the Central Government power to notify such laws whose violation would lead to cancellation of OCI Card is a wide discretion that may amount to an excessive delegation by the legislature. The Supreme Court in the case of Humdard Dawakhana v Union of India has noted that a policy, standard or rule must be set by the legislature while delegating the power to the executing authority to give guidance, which is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers. A provision is also added to give the opportunity of being heard to the OCI cardholders before the cancellation.

Arguments supporting the Act

The Government has clarified that Pakistan, Afghanistan and Bangladesh are Islamic Republics and hence, the Muslims living in those countries cannot be said to be persecuted. It has further assured that application from any other community will be decided on a case to case basis.

Home Minister Amit Shah has referred to Nehru-Liaquat Pact that was signed between India and Pakistan in Delhi in 1950. The Pact provided for better treatment of minorities in both countries. Home Minister said that the Pact failed to achieve its objective in protecting minorities in Pakistan, and this flaw is being remedied by the Indian Government through the amendment.

The NDA Government has argued in the Statement of Objects and Reasons that: 

Millions of citizens of undivided India, after the partition between India and Pakistan on religious lines in 1947 were staying in Pakistan and Bangladesh (previously East Pakistan) from 1947. The Constitution of Pakistan, Afghanistan and Bangladesh provide for a specific State religion i.e Islam. As a result of which many persons belonging to Hindu, Jain, Sikh, Buddhist, Parsi and Christian communities have faced persecution on grounds of their religions in those countries. Some people from these communities in these countries have also fears about facing such persecution in their day-to-day life, where the right to practice, profess and propagate their religion has been obstructed. Many persons out of such fear have fled to India to seek shelter and continued to stay in India even after travel documents have expired or they have incomplete or no documents.

For reduction of period from 11 years to 5 years for the persecuted minorities in the three countries, the Government argued that imposing condition of 11 years residence to get citizenship by Naturalisation “denies them many opportunities and advantages that may accrue only to the citizens of India even though they are likely to stay in India permanently.”

Arguments opposing the Act

Is there a violation of Article 14?

Article 14 of the Constitution of India says that “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The phrase “within the territory of India” conveys that equality should be given to all persons residing in India which includes foreigners and citizens. In the case of Indira Gandhi v Raj Narain, the court also recognised the “Right to Equality” as one of the basic features of the Constitution. This rule is not absolute and permits classification between groups of people if there exists some rationale that serves a reasonable purpose, as was held in the case of State of West Bengal v Anwar Ali Sarkar. The act shall also pass the reasonable classification test as was given in the case of State of Madras v. V.G. Row, which underlined two principles for the test i.e firstly there should be a reasonable classification and secondly, there should be a nexus between the object sought to be achieved and legislation. Therefore, it needs to be checked whether there exists some reasonable rationale for the classification of illegal immigrants on the basis of 

  • their country of origin,
  • religion,
  • date of entry into India, and
  • place of residence in India.

Country of origin

The amendment has classified illegal immigrants on the basis of their country of origin. It has only allowed those immigrants who belong to Afghanistan, Bangladesh and Pakistan to get citizenship of India. It was stated in the Statement of Objects and Reasons that these Countries have a State religion as a result of which religious minorities in these nations have faced persecution. It stated that millions of citizens of undivided India were living in Pakistan and Bangladesh after the partition and hence they are given differential treatment but it has not specified the reasons for the inclusion of Afghanistan.

There is a history of persecution of Tamil Eelams, a linguistic minority in Sri Lanka, and Rohingya Muslims, a religious minority in Myanmar, who have also been facing persecution. And as a result of persecution in these countries, many people have fled to India as a refugee. Given that the objective of the amendment is to provide citizenship to migrants who are fleeing religious persecution, it is not clear why the amendment has excluded the minorities from these countries who are also facing persecution.

Religion

The amendment has included illegal immigrants from non-muslim communities of Afghanistan, Pakistan and Bangladesh to get citizenship of India. However, it has excluded the Muslims who might have also faced persecution. It also does not include Muslim sects of Ahmediya and Shia who also face persecution in Pakistan. It is not clear why the Act only allows only non-muslim communities to get citizenship.

Date of entry into India

The amendment only allows people who entered India before 31st December 2014 to apply for citizenship. The question arises why the differential treatment is given to migrants who have entered in India before and after that date.

Place of residence

The amendment gives differential treatment to migrants belonging from tribal areas of Assam, Meghalaya, Tripura and Mizoram as given in the sixth schedule. The sixth schedule in the Constitution of India was brought to aid in the development of tribal areas through autonomous councils while protecting the indigenous population in these areas from exploitation and preserving their distinct social customs. It has also exempted migrants belonging from “Inner Line Permit” areas. When an illegal immigrant belonging from these areas gets citizenship, he will be subjected to the same restrictions, as are applicable to other Indian citizens, in these areas. There is no clear reason given as to why the illegal immigrants residing in these areas have been excluded from the amendment.

Is the Act against Secularism?

Every legislation passed in India shall not violate basic structure doctrine. Therefore any legislation that fails the test of “basic structure” is unconstitutional. In the case of S.R. Bommai v. Union of India, it was held that Secularism is a part of the “basic structure”. Therefore, any Act passed by the Parliament must not be against secularism. However, the recent amendment has only provided for non-Muslims to get citizenship if they have come before 31st December 2014, which is inimical to the idea of Secularism.

Why the people of Assam are protesting against it?

A lot of protests have started in Assam after the Bill was passed by the Lok Sabha on 10th December 2019. The bill seeks to nullify the purpose of the National Register of Citizens (NRC) that was published this year. The NRC was passed to eliminate thousands of illegal Bangladeshis who were living in Assam. However, after the exercise, 19 lakh people found themselves excluded from NRC. These people included Hindus and Muslims. Now the recent amendment seeks to give citizenship to the non-muslims who have entered illegally in Assam. But it is silent when it comes to providing citizenship to the Muslims. The people of Assam are fearing that accommodating such migrants might pose a threat to their culture, tradition, language and ethnicity of the region, which has become the cause of their protests. Allowing illegal immigrants to live in Assam would also create an economic burden on the State and may decide the political future of Assam.

Clause 6 of the Assam Accord

Assam Accord was signed between the Union Government and leaders of the All Assam Students Union (AASU) in 1985, at the end of a six-year-long agitation demanding the expulsion of illegal immigrants from Bangladesh. Clause 6 of the accord talks about providing constitutional, legislative and administrative safeguards to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people. However, the accord has not been implemented as the committee which was formed to give a roadmap for its implementation has not submitted its report yet. The Accord said that any person who cannot prove their ancestor’s presence before 24th March 1971 would be deemed as an illegal immigrant. The NRC was a promise made in the Assam Accord to identify and deport illegal immigrants but after the Citizenship (Amendment) Act, 2019, illegal immigrants belonging to non-muslim communities cannot be deported.

What is the difference between CAA and NRC?

There is a conflict between the CAA and NRC as the government has been trying to implement both. However, there are differences between the two:

  • NRC is aimed at weeding out people who have entered into Assam from Bangladesh illegally after 24th March 1971 but CAA is aimed at giving citizenship to the six communities that came to India before 31st December 2014 after facing persecution in the countries of Afghanistan, Bangladesh and Pakistan.
  • NRC is not based on religion but CAA is.
  • The base year for NRC is 1971 but for CAA, it is 2014.
  • The NRC is only applicable to Assam till now but CAA is applicable to India as a whole, except some areas as specified in the Act.

Conclusion

The major issue with the amendment is that it provides citizenship only to non-muslim immigrants who have live for five years from the the three countries. However, any foreigner can still apply for citizenship but can only be registered after they have lived in India for 11 years i.e by the normal process of naturalisation. Presently, the petition challenging the amendment has been pending in the Supreme Court which will decide its constitutional validity.

References


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