Being Indian – CAA 2019

Being Indian Citizen

Introduction:

“It is not always the same thing to be a good man and a good citizen”

– Aristotle

Being Indian is not an easy job. India is a country where swanky and substandard co-exist with each other. Though India undergoes serious problems such as corruption, illiteracy, lack of basic sanitation, poverty, pollution, lack of women safety. Yet India is considered as a heaven for people around south Asian countries, Because of its secular and modern liberal principles, fastest growing economy, of course single citizenship which makes you reside anywhere in India and Opportunity to be a part of stable democracy unlike in America where natural citizens alone eligible for presidential post. Comparing with our neighbouring countries who impose communist, Islamic, Buddhist propaganda on their subjects, India is more liberal that attracks many people in the region to obtain Indian citizenship. It leaves India in a place of saviour but the question remains, Is India in the state of giving asylum or in the need of protection.

Concept of citizenship:

The concept of citizenship was traced to the city state of ancient Greece. A citizen in Greek was entitled to vote, taxation and military services. Women and slaves are not considered as citizens. The first modern state to introduce citizenship was Ireland in the year 19351. In modern state, there are two types of citizenship. They are,

  • Single citizenship
  • Dual citizenship

The Indian constitution borrowed the concept of single citizenship from the British constitution. Though Indian constitution gives federal structure of central and state, it provides only one single citizenship, Indian citizenship and there is no separate state citizenship in India. Countries like Switzerland, USA they adopted system of double citizenship. They can enjoy both sets of rights conferred by center and state government. In worst case scenario, this will leads to discrimination. Especially country like India where diverse of culture, religion and ethnic groups, this will cause numerous problems. To promote fraternity and integrity as mentioned in directive principles , India adopted single citizenship. Part II of constitution from Article 5 to Article 11speaks about the citizenship. Apart from this, parliament passed the citizenship act,1955. while 2003 amendment provides manner and methods to acquire citizenship, 2005 amendment further extends to overseas citizenship except Pakistan and Bangladesh2. It was held in Satish nambiyar vs. Union of India3 the procedure not only deals with the growth of citizenship but also with the cancellation of citizenship.

Story behind the union:

Independence gave two dominion twins as India and Pakistan. This worst experience makes India to be become a indestructible union. The Indian Independence Act,1947 gave three options to princely states either to join India or Pakistan, or remains Independent. Out of 552 princely states, 549 joined Indian union4

. Hyderabad, Junagadh and Kashmir refused to join India. In mean time, they joined the Indian federation. Kashmir by instrument of accession, Junagash by referendum and Hyderabad by police action. Even after Independence, there is a political unrest in Indian states. First among them was the demand of separating the Andra pradesh from madras state. After the failure of Dhar commission and the the JVP committee5, government of India was forced to create first linguistic state only for the convenience of administration. the death of Potti sriramulu made the government to do this arduous work. After, the 7th amendment and the state’s reorganisation act,1956 part A,B,C,D states was abolished. Article 1 of the Indian constitution describes India that is Bharat. Dr. B R Ambedkar preferred union of states rather than federation of states by pointing out two reasons:

  • India is not a result of Agreement among the states
  • Indian states does not have the right to secede
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Article 3 gives parliament, the right to alter the Indian boundaries which makes India “Indestructible union of destructible states”. but the American constitution gives this protection so it is rightly called as “ Indestructible union of Indestructible states”6

Procedure for citizenship:

Part II of Constitution is not exhaustively talks about citizenship. It only covers citizenship at the time of commencement of constitution. So parliament passed the citizenship act,1955. Through this act a person can obtain citizenship by following ways7;

  • By birth ( section 3)
  • By descent ( section 4)
  • By registration(section 5 )
  • By naturalisation ( section 6)
  • By incorporation of territory( section 7)

the act also covers cessation under section 9 and the deprivation of citizenship under section 10.

In hans muller of nuremberg vs. Superintendent presidency jail8, Calcutta the supreme court held that the powers of government to expel a foreigner is absolute and unlimited. Though foreigner claims article 21, the right to reside and settle in India conferred under Article 19(1)(d) is available only to the citizens.

In S Nalini srikaran vs. Union of India9, the child of sri lankan parents who were conspired in the assassination of the former prime minister Rajeeve Gandhi was held to be Indian citizen as she was born in Indian prison. After the judgement that awarded death sentence to her parents, her grandmother took her to Sri lanka on Sri lankan passport.

Status of corporation:

Corporation is a government company registered under Companies Act. Whether corporation was a citizen for the freedom under article 19(1)(g) was answered by the supreme court. It was held that the term citizenship was not defined in Indian constitution as well as in citizenship act. Further, citizenship act specifically excluded company, association, body or individuals. Thus, both citizenship act and constitution only recognizes natural persons as citizens. In divisional forest officer vs. Bishwanatha Tea co, ltd10

, the supreme court ruled that company cannot complain for breach of fundamental rights under Article 19(1)(g). further, in AI works vs. Chief comptroller of imports11, a writ petition was filed by a firm for enforcement of a fundamental right available to a citizen. Unlike a corporation which has a legal identity of its own separate from the shareholders, a firm stands for all the partners collectively and therefore, the petition is deemed to have been filed by all the partners who are citizens of India.

Citizenship amendment act 2019:

The ruling Bharatiya Janata party (BJP) introduced a bill to amend the citizenship law in 2016 which will make easier for non muslims immigrants from pakistan, afghanistan, bangladesh to obtain Indian citizenship. CAB was easily passed in lok sabha but it was delayed in rajya sabha because of the growing opposition and protest in north-east India. Even BJP directly says in their election campaign that the religious minorities are persecuted in neighbouring muslim-majority statesThe Bill was introduced in Lok Sabha on 19 July 2016 as the Citizenship (Amendment) Bill, 2016. It was referred to the Joint parliamentary committee on 12 August 2016. The Committee submitted its report on 7 January 2019 to Parliament. The Bill was taken into consideration and passed by Lok Sabha on 8 January 2019. It was pending for consideration and passing by the Rajya Sabha. Consequent to dissolution of 16th Lok Sabha, this Bill has lapsed. After the formation of 17th Lok Sabha, the Union Cabinet cleared the Citizenship (Amendment) Bill, 2019, on 4 December 2019 for introduction in the parliament.After receiving assent from the President of India on 12 December 2019, the bill assumed the status of an act.The act came into force on 10 January 2020. The implementation of the CAB began on 20 December 2019, when Union Minister Mansukh Mandaviya gave citizenship certificates to seven refugees from Pakistan.

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Changes in the citizenship act,1955:

The following persons shall not be treated as illegal migrants12,

  • Persons belonging to hindu, sikhs, buddhist, jain, parsi or christian

Community from Afghanistan, Bangladesh, Pakistan,

  • Persons who entered on / before 31stDecember, 2014
  • Persons who have been exempted by central government under passport (entry into India) act, 1920 or the foreigners act, 1946

It is specifically excluded the application of this act to tribal areas of Assam, Meghalaya, mizoram, tripura as included in 6th

 schedule and areas under ‘ the inner circle’ mentioned in Bengal eastern frontier regulations 1873. It is also noted that the overseas cardholder citizens who violated any laws has given a reasonable opportunity of being heard. The most important change was the period of resident in India for non muslims who have migrated to India from Afghanistan, Bangladesh, Pakistan is reduced from 11 years to 5 years.

Criticisms:

All over India, people shows their opposition to CAA, 2019 in forms of protest, rally. But there are two kinds of protest that take place in two different areas,

  • In North-east , they are feared that this act will cause rush of immigrants that may alter their demographic and linguistic uniqueness.
  • Rest of India protest against the exclusion of Muslim community.

Selecting only six religion from three countries is itself violation of article 14. The main objective CAA was to protect people from religious persuasion. But the question remains why it include Afghanistan and not sri lanka and Myanmer. These countries also facing such religious and ethnic persuasion.

The reasonable classification has three test13,

  • Objective test –  excluding one religion is completely Arbitrary
  • Intelligible differentiation- two differentiated classes which law dosn’t protects both
  • Rational nexus- two separated classes must have some connection  between them

CAA does not passed this reasonable classification test. It is very important to have some connection between class separated which tends to achieve. The national register of citizen (NRC) works in Assam is quite disturbing. Its basics function is to identify the illegal migrants but the way to different citizen from illegal migrants is atrocious. Despite of having, aadhar card, pan card, ration card etc., if their grandparents are  not having any documents, their whole family regarded as illegal migrants. But it is excluded to non-muslims. It is said that many people lost their home , property in worst their nationality because of this CAA, and NRC. It also contradicts the Assam Accord of 1985, which states that illegal migrants, irrespective of religion, heading in from Bangladesh after March 25, 1971, would be deported14.

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Government stand:

Government has classified Pakistan, Afghanistan, Bangladesh as Islamic states where muslims are majority hence they cannot be treated as minorities. Government also claims that the amendment aims at granting rather than taking someone’s citizenship and also assured to hear each and every cases. They also advocated that this act will be a redemption for the victims of partition and subsequent conversion of these three Islamic states. They are highlighting the failure of Nehru-Liaqat pact of 1950 for protecting rights minorities in Pakistan and Bangladesh. India always conceded its responsibilities towards minorities in the neighbourhood. On regarding towards the minorities from sri lanka, Myanmar, etc., the Government clarified that the process of awarding citizenship to refugees has been undertaken by different governments in the past on case to case basis from time to time, on “reasonable qualifications to Article 14”15

. This time the case of refugees fleeing religious persecution from these three countries has been considered through this Bill. It was assured to the people of Assam that their culture would be preserved.

Conclusion: 

Imagine yourself in a very country, thanks to your faith you’re regenerate, discriminated, raped , murdered. Well, you’re imagining West Pakistan. Hindu ladies area unit habitually forced to convert to Islam, particularly in rural Sindh. Asia Bibi, a Christian lady, was not guilty by the Supreme Court of West Pakistan of blasphemy charges in 2018 when languishing for eight years on death house. In 2014, a Christian couple was burnt alive in Kasur, close to urban center. Recently, a adolescent Sikh woman was allegedly kidnapped and regenerate to Islam in Pakistan’s geographic area province. West Pakistan is alleged to be among the worst places within the world for sect Muslims. In 2012, gunmen force out a minimum of twenty sect Muslims from a bus and killed them in northern Pakistan16. So, before talking regarding article fourteen, we’ve got to grasp we have a tendency to don’t seem to be equal. Those 3 nations ( Afghanistan, Pakistan, Bangladesh) area unit Moslem states whereas Asian country could be a profane state. Muslims area unit recognized in those countries however not the minorities. that’s why, CAA provides importance to those minorities. relating to the question I raised within the introduction. Indian population is sort of reaching four billions. we have a tendency to area unit still scuffling with state for the man voters. Inspite of all circumstances, we’ve got to present shelter for those that area unit extremely in would like of protection icluding the Rohinyas muslims from myanmer. there’s a distinction from these 3 countries muslims and also the rohinyas. Citizinship could be a selection for them however not for rohinyas. Government should determine the individuals the necessitous individuals not supported documents of grandparents however supported the evidence.

Endnotes:

  1. wikipedia.com/citizenship
  2. M P Jain, Indian constitutional law , 2019 reprint
  3. AIR 2008 Bom 158
  4. M Laksmikanth, Indian polity, 2019 edition
  5. Ibid
  6. Ibid
  7. M P Jain, Indian constitutional law, 2019 reprint
  8. AIR 1955 SC 367 (1955): 1 SCR 1248
  9. AIR 2007 mad 187 (2007) : 2 MLJ 831
  10. AIR 1982 SC 1368 (1981) : 3 SCC 238
  11. AIR 1973 SC 1539(1973): 2 SCC 348
  12. Official gazette of India, Citizenship amendment act,2019
  13. legalservicesindia.com/CAA
  14. Ibid
  15. dritshiias.com/CAA,2019
  16. thehindu.com/pakistanminorityproblem

Author: K Sangeetha,
Government law college, chengalpattu

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