An Act that was rushed, ill-conceived, ambiguous and goes against the basic tenets of the Constitution of India – the Citizenship Amendment Act of 2019

An Act that was rushed, ill-conceived, ambiguous and goes against the basic tenets of the Constitution of India – the Citizenship Amendment Act of 2019

Author: Anip Chakraborty

                                Student of 3rd Year Ba Llb
              Christ (Deemed to be University)
              

Abstract
‘An act that was formulated to grant a helping hand has posed a threat on the identity of the indigenous and the natives.’ The Amendment to the Citizenship Act of 1955 was first addressed as bill in the Parliament of India on the 29th of October, 2019. The bill was passed by the Rajya Sabha on the 11th of December, 2019 and received the assent of the President of India on the 12th of December, 2019. This paper highlights the erroneous amended provisions of the Act and as to how it is menacing for the entire country particularly the north-eastern part by virtue of its granting citizenship status to the illegal migrants. Furthermore, the Act is also violative of the Assam accord which set up the cut-off date for deportation of illegal migrants as 23rd March, 1971 which has now been extended to December, 2014. The paper also lies a focus as to how the Act leads to a violation of various constitutional provisions such as Article 14 of the Constitution of India by being biased towards the Muslim community and Article 15 of the Constitution of India  by being biased towards the Muslim Rohingyas. India is a secular country and it cannot make discrimination on religious grounds. Furthermore, this paper will also highlight as to how the passing of the Act will nullify the process of National Register of citizens being conducted by the Government of India in Assam and in future, across the whole country. When the NRC would be conducted it would only be the Muslims who would be deported back. This research paper follows a doctrinal method of research.
Keywords – Citizenship, National Register of Citizens, deportation, refugee, immigrants, Constitution, human rights.

An Act that was rushed, ill-conceived, ambiguous and goes against the basic tenets of the Constitution of India – the Citizenship Amendment Act of 2019

The Citizenship Amendment Bill was proposed in Lok Sabha on the 19th of July, 2016. The bill was proposed to amend the Citizenship Act of 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship but excluded the Muslim community. Under the Act, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Act relaxed the 11 year requirement to 6 years for persons belonging to the same six religions and three countries. The Act also provided that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violated any law. Also, the cut-off date for deportation of all illegal migrants was being decided as 31st of December, 2014 through this Act. However, by virtue of the Citizenship Act the cut-off date for deportation is 19th of July, 1948. So it is quite evident that anyone who has entered India on or before 31st of December, 2014 and has resided in India for a continuous period of 6 years would have been granted a citizenship status in the country. However, he would not have qualified as a citizen of India if he/she has not entered the country before the stipulated date or has not lived in the country for a continuous period of 6 years.

Amid huge protests across the country, the bill was being passed in the Lok Sabha on the 8th of January, 2019. The bill was being later sent to the Rajya Sabha for its assent where it was not being tabled and thus, lapsed after the Lok Sabha and the Rajya Sabha were being adjourned sine die before the next general elections. However,on December 9, 2019, the CAB Bill was tabled and passed in the Lok Sabha’s Winter Session. President Ram Nath Kovind signed it on December 12.
In India citizenship is granted on the basis of birth, descent or naturalisation. The granting of citizenship to a foreigner till date through the process of naturalisation existed.  But the granting of citizenship status to illegal migrants through the process of naturalisation was introduced for the first time through this Act. Till now the Citizenship Act of 1955[1]mentioned that any foreigner other than an illegal migrant, for example, foreigners who stay in the country to study or work can apply for citizenship by naturalisation.[2] But with the introduction of this bill, this criterion was changed with the illegal migrants being regarded as legal citizens and thus eligible for acquiring citizenship through naturalisation. Further, the relaxation of the time period from 12 years to 6 years should not have happened. It is a un reasonable classification. With no explanation given as to the inclusion of this clause, it is prima facie unconstitutional, failing the test of reasonability contained in Article 14( Right to Equality) of the Constitution and corrupting the ‘basic structure doctrine” (Kesavananda Bharati vs. State of Kerala)[3]

The Act was not at all worth to be an Act since it was violative of several rights of the citizens of this country and was against the basic structure of the constitution.

There are three important research questions which would analyse the drawbacks of the Citizenship Amendment Act to a wide extent. They are as follows:
1)     Would the Act essentially serve a rightful purpose ? If so what would be that purpose?

The Act would prove unsuccessful in serving a rightful purpose. It curbs the rights of the original inhabitants of the country to a certain extent. It poses a threat for the citizens of our own country since the right to choose their own representatives is violated. The immigrants’ vote would result in change of the decision of an electorate. Also, there are possibilities that the illegal migrants might be engaged in a lot of illegal activities around the country. This would have resulted as a threat to the security of the country. Also, it would have resulted to a burden on the country’s economy since India is a country with huge population and limited amount of resources[4].

The government had taken a stance to safeguard the rights of the illegal migrants on the grounds of humanity, that they in their own country were unable to lead a proper livelihood and thus, have made a shift to this country. But it has to be taken into consideration that there is a difference between illegal migrants and refugees. The refugees are those people who have faced a lot of discrimination in their own country either due to their race, religion, caste, etc. Their life to a certain extent has been threatened. For example, the refugees from erstwhile East Pakistan and later Bangladesh were being granted citizenship status in our country in the year 1971. This was because the Hindu population in the country faced huge discrimination on the basis of their religion and their life was at stake in the Muslim dominated East Pakistan and later Bangladesh after its independence. Therefore, they are being given citizenship status in this country on grounds of humanity. But also when the situation starts to improve in the native countries, initiatives are being taken to deport them back. This has happened recently with respect to the Rohingya Muslims who were being subject to religious discrimination in their own native country Myanmar and who later took refuge in Bangladesh. But the government of Bangladesh has negotiated with the government of Myanmar to send the refugees back to their own motherland. But a government’s stance on granting citizenship on grounds of humanity only because they were not being able to lead proper livelihood or they were subjected to certain difficulties since they were minorities is not sufficient for granting them citizenship in any other country. Here the native countries can be negotiated with by the other countries and the international courts to provide proper means of livelihood to these citizens and reduce religious dis
crimination against them. Finally initiatives should be taken for deporting the migrants to their own respective countries.

2)     Would the Act succeed in serving the purpose of equality?
The bill would fail extensively in serving the purpose of equality. The illegal migrants who are to be granted the benefit of this legislation were to qualify for citizenship only on the basis of religion. This is a requirement which goes against one of the basic tenets of the Indian Constitution, secularism. The most glowing discrimination in the Act is that it specifically mentions six religions, that is, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who are religious minorities from three countries that is Afghanistan, Pakistan and Bangladesh who are not regarded as illegal migrants. Muslims and Jews were deliberately kept outside the ambit of this Act.[5] As to this day, it is the Muslim community who form largest religious minority community in the country. It makes little sense to deliberately keep them outside the ambit of this Act. Individuals such as Taslima Nasrin who has been in exile in India since 2005 has been ousted from the ambit of this Act. Nasrin asserts that she is an Indian but the Act  made it impossible for her to gain Indian citizenship on the basis of her religion. Moreover, the provision of relaxing the criteria of 11 years to 6 years to gain citizenship by naturalisation, for the persons belonging to these religious communities, is on similarly orthodox lines. Such a condition would make it difficult for persons belonging to other religions such as Islam and Judaism to gain Indian citizenship. The theory of basic structure states that the Constitution contains certain important characteristics that cannot be taken away by any legislation. Secularism is one of the basic structures of the constitution. Therefore, any legislation which does not follow the concept of secularism is an unconstitutional one.

3)     Was the amendment to the provisions related to Overseas Citizen of India justiciable?
The Act had also made amendments to provisions related to Overseas Citizen of India (OCI) cardholders. A foreigner may register as an Overseas Citizen of India under the 1955 Act if they are of Indian origin (e g, former citizen of India or their descendants) or the spouse of a person of Indian origin. This will provide them with certain benefits such as the right to travel to India, and to work and study in the country. The 1955 Act provides that the central government may cancel registration of OCIs on certain grounds, including: 1) If the OCI had registered through fraud or 2) if within five years of registration, the OCI was sentenced to imprisonment for two years or more.[6] The Act added one more ground for cancelling registration by amendment to the existing Act to allow cancellation of OCI registration if the person has violated any law. The most important question to be considered here is that the Act only talks about the violation of any law and not any law in particular. This would mean that their citizenship status would be cancelled even for violating petty laws such as violation of traffic rules, etc. which is not at all justified. The Indian citizens are only paying fine and they will not be given citizenship status is not justified. This is against concept of equality related to place of birth.[7]

The Act has also been subject to serious protest from the various north eastern states of India. After being passed, it has not affected the rest of the country so much as it has affected the north eastern states
of the country. This is because illegal immigrants have been entering the north eastern part of the country from Bangladesh even after 1971.[8]

With regards to the state of Assam, the Act is violative of the Assam Accord signed in 1985 which stated that illegal migrants, who entered Assam from Bangladesh after 25th of March, 1971 were to be deported. The state of Assam had signed this accord not restricting it to any particular religion, but to all religions in order to safeguard the rights of the Assamese population. The government’s aim was to safeguard the culture and heritage of the Assamese people, which if not controlled would be dominated by the Bengali population who already formed a majority in the 8 Barak Valley districts of Assam. The on-going NRC updating process is also been affected with the passing of this Act. The National Register of Citizens (NRC) is meant to identify a bona fide citizen. By the order of the Supreme Court of India, NRC is being currently updated in Assam to detect the Bangladeshi nationals who might have entered the state of Assam illegally after the midnight of March 24, 1971. This date was decided in the 1985 Assam Accord, which was signed between the then Prime Minister Rajiv Gandhi and the All Assam Students Union. The second draft list of the NRC has not yet been released yet, while the first updated list was concluded by December 31st, 2017. Following the NRC, anyone found to have entered Assam illegally after March 24, 1971, irrespective of their religion will be deported. While the Citizenship Amendment Act of 2019 grants citizenship to non-Muslim refugees who were subject to persecution in the neighbouring countries, the NRC is not designed to classify migrants on the basis of their religion. Therefore, by virtue of this Act, non-Muslims who have entered Assam after March 24th, 1971 need not go through the deportation process, thereby nullifying the NRC process. However in the Bengali-dominated Barak valley, most people had welcomed the religion-based citizenship rules, which, they hoped would have shielded them from the National Register of Citizens (NRC). Until now, close to 40 lakh people have not found place on the NRC.

Also with regards to Meghalaya, the Meghalaya Democratic Alliance (MDA) government, which is an alliance of the BJP, has opposed the Act. They called the Act as “dangerous”. The government of Meghalaya said that they don’t agree with the idea of non-Muslims acquiring citizenship after six years of living in the country. The state also showed serious concern since the percentage of Bengali population is increasing extensively by the migration of people from Bangladesh.

The state of Tripura already has a Bengali majority population of 69 per cent. However, the state had been protesting against the Act since people who were given citizenship status by the government on or before 1971 i.e., the Bengali population, mostly Hindus do not want the illegal migrants, irrespective of their religion be granted citizenship status in the country. It will violate their own personal rights as well as the people who entered the state later might have also involved themselves in various illegal activities against the state. The indigenous population of the state led by Maharaja Pradyut Kishore Manikya has also protested against the Act to safeguard their ethnic and cultural rights.

The state of Mizoram had also made serious protests against the Act since the Chakma refugees from Bangladesh is worsening the situation in the state by affecting the ethnic culture and heritage of the Mizo population. 

Also apart from Assam and the other north eastern states, the JDU and Bihar Chief Minister Nitish Kumar were against the Act.

The Act was being protested extensively by the common citizens of the country apart from the various political parties and the government of the states. It is an unconstitutional one and violative of the basic structure and the fundamental rights of the citizens of this country. Therefore, the Act was in no manner justified to be passed as an Act.

However, various provisions can be incorporated within the Act and a further amendment can be made if at all it is to be continued:
1)      The first suggestion is with regards the definition of citizenship. A proper definition of citizenship should be incorporated within the Act and should mention what is and what is not conforming as to regards international principles of law and politics.
2)      The second suggestion is that there should be a proper system of checks and balances. The wide power given to the central government to rescind the OCI card status should be curtailed or at least checks and balances should be put in place by appointing a committee or an ombudsman.
3)     The third suggestion is that there should be a removal of religion as a basis. The concession of six to twelve years of residence to immigrants based only on the religion of the migrants should be removed as it is against the idea of secularism.
4)     The fourth suggestion is that the status of refugees and under what conditions they can obtain citizenship of India should be looked upon bearing in mind the international migrant crisis. Also, a clear demarcation between a refugee and an immigrant should be drawn.
5)     The amendment to the 1955 Act, denies the registration of a person as an Overseas Citizen of India if they have been a citizen of Pakistan or Bangladesh. The fifth suggestion is that in this day and age, where global peace is being targeted upon, it is very essential to create a sense of harmony and togetherness. The creation of such targeted legislation would be detrimental to such objective.

Legislature is an inclusion body, and is representative of the will of the people. It should have no biases and should try its utmost to provide justice and liberty to all. Although the legislature consists of political parties, there should be no politics with regards to passing of legislations that bypass the democratic ideals of India. In the present form, the Act is unworthy. It is rushed, ill-conceived and ambiguous. And in its present form it will do more harm than good. However, with the above mentioned suggestions the Act may become an efficient one and might serve a rightful purpose.


[1] Citizenship Act, 1955.


[2] Subrata Mitra: Citizenship in India; some preliminary results of a national survey: Economic and Political Weekly, vol. 45, no. 9, February 27- March 5, 2010, pages 46-53.

[3] Kesavananda Bharati vs. State of Kerala [(1973) 4 SCC 225].

[4] Apurva Thakur: Why the Citizenship Amendment Bill Goes against the Basic Tenets of the Constitution: Economic and Political Weekly, vol. 53, issue no. 13, 31 March, 2018.

[5] Ornit Shani: Conceptions of Citizenship in India and the ‘Muslim Question’: Modern Asian Studies, vol. 44, no. 1, January 2010, pages 145-173.

[6] Anupama Roy: Overseas Indian Citizen: A New ‘Setubandhan’: Economic and Political Weekly, vol. 41, no. 15, April 15- 21, 2006, pages 1421-1424.

[7] www.prsuindia.in.

[8] S.N Dwivedi: Location of Sovereignty in India: Journal of the Indian Institute, vol. 9, no. 1, January- March, 1967, pages 71-84.
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