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This article is written by Srishti Pandey.

What constitutes the Indians into a nation? Quoting Ernest Renan, “not speaking the same tongue or belonging to the same ethnic group, but having accomplished great things in common in the past and wish to accomplish them in the future.”

India became a constitutional entity post the enactment of the 1947 Independence Act, and after the accession of the Indian states to the dominion. On 26 November, 1949 this new constitutional entity declared itself a ‘Sovereign Democratic Republic’ and the People of India enacted, adopted and gave themselves the Constitution. The Constitution of India is the grundnorm, and whoever constituted one of the people of India when this Constitution was adopted was considered as a member of the new State. These people associated amongst themselves to form a nation. In this context, the Constitution confers certain fundamental rights upon the ‘citizens’ of the country, whereas certain rights upon ‘all persons’.

A citizen is recognized in common parlance as the status which is conferred upon a person and which bestows upon him the rights conferred as a legal member of a sovereign state or a nation. Nationality must be distinguished from citizenship and these two terms cannot be used interchangeably. Nationality connotes to a person’s country of birth, whereas citizenship is affiliated to a person’s registration as a citizen and which is recognized by the government of the respective country. The Constitution of India (Part II) and The Citizenship Act, 1955 are considered as completely exhaustive of the citizenship provisions of this country.

Before the Constitution of India came into force in 1950, the provisions regarding the initial citizenship were brought into force from 26th November, 1949 (Articles 5 to 9), except in the state of Jammu and Kashmir, wherein the provisions were made applicable from 26 January, 1950.

The test adopted for citizenship included the nexus of the individual with the Union: by birth, descent or domicile and the additional requirement that he has not voluntarily acquired the citizenship of another country. For the citizenship of migrants to and from Pakistan special provisions were made. The provisions of Citizenship in the Constitution are of a limited character. Parliament was given plenary power to make laws with regard to citizenship and on 30 December, 1955, the Parliament enacted the Citizenship Act of 1955 for the purposes of acquisition and termination of citizenship. The act is based on the British Nationality Act, 1948 with certain essential variations. 

Several debates regarding citizenship and its acquisition have time and again arisen in the nation. A recent amendment to the Citizenship Amendment Act has been in furor for the past few days. The 2019 amendment to the 1955 Act has been termed by critics as the reason for public unrest and violence in various states across the country. The amendment is still in its nascent stage, a judicial review is still pending. 

Another reason for unrest which has been highlighted is the nationwide implementation of NRC (National Register for Citizenship) and its combined reading with the Citizenship Amendment Act, 2019 (hereinafter referred as the CAA). To understand this debate it is of utmost importance to understand the law behind the bill, the legislative intent and the debate with regard to the same in the parliament. For understanding the ramifications of the NRC it is important to understand the intent with which it was implemented in Assam in the first instance.

Law with regard to Citizenship

A study of law of citizenship and aliens of a country gives the contours of an individual’s rights, privileges, liabilities and disabilities within and beyond the territory of a state. The Constitution of India, 1950 and the Citizenship Act, 1955 are the exhaustive laws with regard to citizenship in India. The residents of India can be divided into- citizens and aliens. Citizens have the rights conferred to them which are not available to aliens like the right to vote, contest elections, etc. Part II of the Constitution of India confers citizenship. Aliens are further divided into legal aliens and illegal aliens. The term alien is in consonance with foreign national. Typically, according to lexicology, a legal alien is a foreign national who has been permitted by law to be in the host country, whereas an illegal alien or an illegal migrant does not fulfill certain requirements under the law, and hence; is not permitted to be in the host country and is therefore termed as an illegal migrant. Another classification of an alien is an enemy alien, who is a foreign national with whose country the host country is at war. 

Articles 15, 16, 19, 29 and 30 of the Constitution of India guarantee rights to citizens of India. Whereas the other rights under Part III of the Constitution are guaranteed to every person in India. Under Article 11 of the Constitution of India citizenship matters are to be regulated by the Parliament. According to the 1955 Act, citizenship can be acquired by birth, descent, marriage, acquisition of foreign territory by India (eg. Pondicherry) and naturalization. For the purposes of naturalization, the person should have renounced the previous citizenship and must have stayed in India for fourteen years of which eleven years should be cumulative.

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Illegal Migrants and Citizenship

One qualification for acquiring citizenship through birth, descent, registration, naturalization is that the person should not be an illegal migrant. According to section 2 (1)(b) of the Citizenship Act, 1955 an “illegal migrant” means a foreigner who has entered into India (i) 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 (ii) with 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 but remains therein beyond the permitted period of time. Hence, illegal migrants are per se not eligible to apply for Indian citizenship. 

Refugees, illegal migrants and the Refugee Convention 1951: A refugee is someone who has been forced to flee his home because of war, violence or persecution. Official organizations like the UNHCR determines whether a person seeking international protection meets the definition of a refugee based on a ‘well-founded fear’.

There is a difference between a migrant and an immigrant. Where illegal ‘immigration’ refers to the migration of people into a country in violation of its immigration laws, illegal ‘migration’ is involuntary and is closer to the definition of a refugee. When the host country grants a legal protection status, these illegal migrants are termed as refugees. India plays host to approximately 332,300 refugees and is the second largest refugee-receiving country in South Asia, after Pakistan. India’s multi-ethnic, multilingual society has made it an attractive destination for a lot of asylum-seekers. Tamil refugees from Sri Lanka, the Jumma people from Bangladesh, the Chin and other tribal refugees from Myanmar, refugees from Afghanistan, Iran and even Sudan comprise the bulk of India’s refugee population.The government officially recognizes Tibetan and Sri Lankan Tail refugees and provides them protection; refugees from other states are left to the UNHCR in New Delhi. It is important to note that India is not a signatory to the Refugee Convention.

India has an ad-hoc system of refugee determination, deportation and protection. In the judgment of the Supreme Court in NHRC v. State of Arunachal Pradesh, it was held that all refugees, within the territory of India are to be guaranteed the right to life and personal liberty enshrined under Article 21 of the Constitution of India. The government has not yet signed the convention which was initially formulated in the aftermath of the World War for the European refugees. However, after the 1967 protocol to the convention it is open for signature and ratification for others as well. 

Also, it is worth mentioning that on the 25th of December, 2019, the Calcutta High Court stayed the deportation of a Rohingya Couple to uphold the spirit of humanity. A writ petition challenging the decision of the center for the deportation of 40,000 Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar is pending before the Supreme court. The Rohingyas are stateless in view of Myanmar having disowned them.

Jus solis and jus sanguinis

Jus solis refers to the law of the soil whereas jus sanguinis refers to the law of the blood. The principle of jus solis is followed in countries like the US as compared to jus sanguinis which is followed in India. This means that a child born in the US soil is considered as a citizen of the state, irrespective of whether his/her parents are citizens of the US or not. However, with regard to the Indian principle, no matter where a person is born, but if he/she has a nexus to India through blood, he/she is considered as an Indian citizen.

2015 and 2016 notification

The illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. While the 1946 Act regulates the entry into and exit of foreigners into India. The 1920 Act puts forth that no foreigner can enter into India without a passport. In 2015 and 2016 the Central Government issued two notifications exempting certain group of illegal migrants from the provisions of the 1946 and the 1920 Acts. These groups included Hindus, Sikhs, Buddhists, Jains, Parsis and Christians of Afghanistan, Bangladesh and Pakistan who arrived in India on/before December 31, 2014. This implies that these groups of people will not be deported or imprisoned by the government authorities for the reason of insufficient documentation.

The Bill and its provisions

The bill’s objective is that the minorities from three countries facing religious persecution, i.e. Afghanistan, Bangladesh and Pakistan which are notably Islamic states to not be treated as illegal migrants. Ergo, they can apply for citizenship of India by registration or naturalization. These minorities shall be deemed as Indian citizens from the day they enter into India. 

If their case is pending in-front of the foreign tribunal, the case shall lapse and they will be given citizenship. In order to get this benefit they must be exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. This is the harmonious construction of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 with the bill. These minorities include Hindus, Buddhists, Sikhs, Jains, Parsis and Christians and they have been exempted from the aforementioned acts via the 2015 and 2016 notifications.

Therefore, the bill (now act) says that, on acquiring citizenship: (a) such person shall be deemed to be a citizen of India from the date of their entry into India and (b) all legal proceedings with regard to migration or in connection with citizenship of such person will be closed.

OCI

An addition has been done with regard to grounds of cancellation of OCI registration: upon violation of any of the provisions of this Act or provisions of any other law for the time being in force as may be specified by the Central Government in the notification published in the Official Gazette the OCI registration of a person can be cancelled; a reasonable opportunity shall be given to such a person. 

However, the bill fails to elaborate what these laws might be. It also does not address the ambiguity that if a person has violated a civil law, for example the Consumer Protection Act, the Contract Act, etcetera, for which civil compensation is required, whether then also his/her OCI registration would stand cancelled. Unskillfulness of the draftsman is pretty apparent on the face of it in this provision which can become a source of massive litigation and can add to the burden of the judiciary.

Exceptions carved out under the bill

The amended act adds that the provision on citizenship for illegal migrants shall not apply to the 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” notified under the Bengal Eastern Frontier Regulation, 1873.’ Therefore, the illegal migrants who are granted citizenship cannot settle in the tribal areas under the sixth schedule. The bone of contention with regard to this provision lies in the fact that the entire region of Assam is not under Schedule 6 to the Constitution. 

With regard to the inner line permit notified under the Bengal Eastern Frontier Regulation, 1873, if any Indian has to enter the area of Arunachal Pradesh, Mizoram and Nagaland, that visit is to be regulated by the Inner Line Permit. The amended act does not apply to the aforementioned tribal areas and the area covered under the inner line.

Also, the amended act has reduced the time period required for naturalization, from eleven years to five years cumulatively. 

Arguments in favor of the CAA

  1. It is a law to confer, and not to deprive citizenship. It is not applicable to already existing citizens.
  2. The three tests under Article 14, i.e. reasonable objective must be sought (which is religiously persecuted minority protection), intelligible differentia (affirmative action or positive discrimination in this case) and a rational nexus between ‘those who are included’ and ‘those who are not’ is present. In this argument, it can be contested that Ahmediyas, Sri Lankan Hazaras, Shias are not given protection under the Act and therefore it is discriminatory. However, these strands are subject to ethnic violence. The difference between religious persecutions and those subject to ethnic violence is to be noted. The Bill provides protection to those minorities which are religiously persecuted. 
  3. Indian Muslims are in no way affected by the amended act, they are and they will continue to enjoy the benefits as legitimate Indian citizens.
  4. The basic structure of the Constitution which includes secularism is further strengthened by the inclusion of minorities. 
  5. Article 15 is not violated as it only applies to citizens of India.
  6. The amendment considers the interests of the north-eastern states, by excluding the tribal areas under the sixth schedule from the provision of citizenship for illegal migrants.
  7. With regard to legislative competence, it is submitted that Article 11 confers upon the Parliament plenary powers to make laws with regard to citizenship.

Arguments against CAA

  1. Religion cannot be the basis of classification of citizenship. The classification made by the bill is a religion based classification. Hon’ble Home Minister highlighted that the significance of the bill lies in the fact that the country was partitioned on the basis of religion. However, what he fails to take cognizance of is that Pakistan was created on the basis of religion, not India. India stayed secular.
  2. Article 14 is violated: Judicial scrutiny of the Article in the past is to be noted to present an argument in this respect. The case law of Anwar Ali Sarkar, 1952 held that a yard-stick or measure for the grouping; either of persons in a category or outside a category must be present. In this regard another landmark judgment of the Supreme Court and the verdict given by Justice Indu Malhotra in the judicial precedent that decriminalized section 377 should be highlighted. Hon’ble Justice Malhotra held that where legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. Therefore, there must be a yardstick to differentiate between those included and excluded from the group, and that yardstick must be reasonable. Justice Nariman in his concurring opinion in the case of Shayara Bano, identified the doctrine of manifest arbitration as a facet of Article 14.

Taking into account this jurisprudence, first, differentiation on the basis of country based classification is not justified. Why were Sri Lanka and Myanmar persecuted minorities not included? These countries are also neighboring countries; Myanmar also shares a border with India. Also, if it is argued that countries which were a part of undivided India are included then, What was the basis of including Afghanistan in the list? Lastly, if it is argued that the degree of harm is considered, then Why Myanmar, which is home to the world’s most persecuted minorities (Rohingyas) not included?

Second, the law is not clear on whether the classification is based on singling out persecuted religious minorities or it has the possibility of including victims of ethnic violence. If religious persecution of minorities is the basis of classification then, it can be argued that Tamils are also persecuted in Sri Lanka, which has Buddhism as a state religion (Theravada Buddhism). Why they are not included in the Act?

Hence, the manner in which the countries are chosen and certain countries which are excluded is not clear. Also, critics are comparing the law to the Israeli Law of Return. The Israel Race Law recognizes Israel as the natural home of all Jews and provides similar protection to Jews. Critics are also arguing that why are Jews and atheists not included? The manner of classification is, as such termed arbitrary. More clarity on the provisions was required by the legislature.

  1. Noted senior advocate Harish Salve, has said that the CAA is a policy decision of the government and hence, the Supreme Court cannot intervene in the same, however, a very respectful disagreement is placed on this point. The Supreme Court has in the past intervened in the policy of the government. The case of the cancelling of the 2G spectrum licenses bear testimony to this fact.
  2. Last, Article 11 is not above the basic structure of the constitution. Secularism is the basic structure of the constitution and as such any classification based on religion and without any reasonable nexus must be declared as unconstitutional.

CAA and foreign policy blunders

The Home Minister of Bangladesh and the Foreign Minister of Bangladesh cancelled their visit to India on account of the citizenship status given to the illegal migrants who have fled Bangladesh. It is to be noted that India has had amicable relations with Bangladesh in the past and has been one of the few states with which the country has had stable relations. 

Second, Amit Shah’s statement that, “Muslims are not persecuted in Pakistan” runs contrary to the stand which India has taken at United Nations on the persecution of Balochis at the hands of the Pakistani Army and the brutal history of human rights which India has time and again iterated that Pakistan has. India has also maintained that Pakistan persecutes its own people. The world leaders might not be sympathetic to India in the future because of such irregular stands taken by the government of the country. 

Furthermore, by not providing the Hazaras protection, India has possibly lost a diplomatic asset for the negotiation with the Talibans, who are deemed to come into power in Afghanistan. Taliban is currently in talks with the US and the five permanent members of the Security Council. 

NRC+CAA

Assam saw a huge influx of migrants from 1979. In respect of this, chaos has prevailed in the region for a long time. In the aftermath of this commotion the Assam Accord, 1985 was signed. According to this the illegal migrants were deported from the state after being identified. The cut-off date was kept as 25 March, 1971. This date was chosen because of Operation Searchlight, which was carried out in the then East-Pakistan, now known as Bangladesh. During this time many migrants came to India, because of the war for the liberation of Bangladesh. The NRC list which was published in this regard did not include nineteen million people. Out of these nineteen million people, five to six lacs were Bengali Hindus. 

The government has announced recently that the NRC is to be implemented nationwide. Under the NRC Indian Muslims including other citizens will have to prove their citizenship. If the CAA is scrutinized in isolation, per se there is no harm because it grants citizenship and does not take away any existing rights of the citizens of the country. However, the combined effect of the NRC and CAA, as the critics mention has the potential effect of disenfranchising the Muslims of their proprietary and other interests and rights in the country. More clarity than the thirteen FAQs as published by the government is required on this point.

Conclusion

At this stage it is important to recognize as to who shall franchise the governance of this democracy which has devolved upon us citizenship in the first place, of which we are the nothing but a fraction. The divestment of rights in the hands of the few must at all costs be avoided. The recognition of the state as a secular state should not have to be emphasized but must be inbuilt in the fabric of the nation and should stand tall and honored. Sight must not be lost of the fact that there is a chasm of daylight between inheriting citizenship by blood and inheriting the nation by blood. The unskillfulness of the draftsmen must at all costs be avoided, as it can lead into the disaster that is happening across the nation today. However, it must also be noted that the judicial scrutiny of the bill is yet pending and a much needed judicial activism is yet to be witnessed. The very fact that arguments can be made in favor of and against the bill, presents that it needs a certain degree of amendment. Here a little, there a little.

Yours faithfully,

Neither a leftist nor a Bhakt,

A concerned law student.


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