The Citizenship Amendment Act became law. It will turn India into Hindutwa Republic, in utter disregard to secular character of our Constitution. On this count alone the Bill deserves to be declared as unconstitutional because the secularism is our basic character.
The CAB simply means that if a Hindu person comes into India from Pakistan and Bangladesh to settle with his relations or friends from whom he separated 1947 or after, he will be welcomed with conferment of citizenship of India; but if he is a Muslim, he is not. This is clear violation of fundamental right to equality. Home Minister cleverly countered this point saying Muslims of these Islamic republics are not minorities and hence he would not fall under the 'reasonable classification' of persecuted 'minorities' of those Islamic nations. But it does not answer the point that if that Muslim wants to join his pre-1947 relatives or friends, he will be part of minority India. Article 14 accords rights to 'persons' while Articles 15 and 16 to citizens. The CAB strikes at this basic level of equality among persons and does not allow some equally footed persons to become citizen of India.
Constitutional foundation of citizenship:
Citizenship Act 1955 gives detailed process of conferring citizenship according to Articles 5 to 11 of the Constitution of India. Article 5 says at the commencement of this Constitution, every person who has his domicile in the territory of India and— (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
Article 6 gave rights of citizenship of persons who have migrated to India from Pakistan at the commencement of this Constitution if he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 and in case where such person has so migrated before 19th July 1948 has been since ordinarily resident in India, or where he migrated after that date, he was granted citizenship on his application before the commencement of the Constitution. Such person should have been resident of India at least six months immediately preceding date of application.
Article 7 says that a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:
Article 8 says any person who or either of whose parents or any of whose grand-parents was born in India, and who is ordinarily residing outside India shall be deemed to be citizen of India , if he is registered as citizen by the diplomatic or consular representative of India in such country, on his application either before or after commencement of Constitution.
Article 9 says any person who becomes citizen of other country, loses Indian citizenship by virtue of Article 5, 6 or 8.
Article 10 says every person who citizen of India shall continue to be so subject to provisions of any law that may be made by Parliament.
Article 11 says Parliament has power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The NDA Government invoked the power under Article 11 and amended the Citizenship Act 1955.
Entire objective of Constitutional foundation of Indian citizenship codified in Articles 5 to 11 is to allow the Indian citizens prior to 1947 to acquire citizenship of India even after 1947. It does not discriminate between Hindus and Muslims as far as their 'personality' is concerned. That objective is based on secular credentials of the Indian Republic is breached by CAB.
The Citizenship Amendment Bill (CAB) 2019, amending the Citizenship Act of 1955 has been passed by both Houses, confers Indian citizenship on Hindu, Jain, Buddhist, Sikhs, Parsi or Christian refugees coming from Afghanistan, Bangladesh, and Pakistan. Original Act 1955 specifies that illegal immigrant cannot get citizenship. CAB proposes exceptions to this rule. In 2015 the Centre made changes to the Passports Act and Foreigner's Act to allow non-Muslim refugees from these countries to stay back in India even if they entered the country without valid papers. Most significant aspect of the bill lies in unstated i.e., Muslims, who are excluded from the list. Muslim refugees from Afghanistan, Bangladesh and Pakistan cannot get citizenship in India. Home Minister denied the allegations of discrimination against Muslims saying Muslims are not minorities but majorities in these three Islamic republics. At the same time, Home Minister says Partition in 1947 was on religious lines, minorities were persecuted in Pakistan Bangladesh since 1947, to whom NDA government decided to provide citizenship and protect.
This change also relaxes the provisions for citizenship by naturalisation, i.e., the requirement of residence in India from 11 years to 6 years for these migrants. The BJP justified this move as protecting minority refugees from Pakistan, Bangladesh and Afghanistan. Following severe protests and political opposition in northeast states, the bill exempted the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth and Schedule to the Constitution from its applicability. These tribal areas include Karbi Anglong in Assam, Garo Hills in Meghalaya, Chakma district in Mizoram, and Tribal Areas district in Tripura. It also exempted the areas regulated through the Inner Line Permit which includes Arunachal Pradesh, Mizoram and Nagaland. These provisions of Bill will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth Schedule to the Constitution as well as the areas which are regulated through the Inner Line Permit. The opposition against the bill was the fear that the demography of Northeast India will change with the influx of migrants from Bangladesh.
Overseas Citizenship of India
There are new provisions for cancellation the registration of Overseas Citizenship of India (OCI) for reasons of registration through fraud, or if he sentenced to imprisonment for two or more years within five years of registration and in necessity in the interest of sovereignty and security of India, or for any violation of any law notified by the central government. Though bill facilitated an opportunity for the OCI holder to be heard before the cancellation, it raised apprehensions about selective cancellation of citizenship. Interestingly the Research and Analysis Wing told the Joint Committee of Parliament that this Bill could be misused by foreign agents to infiltrate India (from agencies like Pakistan's ISI) and that it could become 'legal framework' which could be misused. It also attracted opposition from a global organization the US Commission on International Religious Freedom (USCIRF) which called for sanctions against the Home Minister or other principal leaders over this Bill. This Commission cautioned: "In conjunction with the ongoing National Register of Citizens (NRC) process in Assam and nationwide NRC that the Home Minister seeks to propose, USCIRF fears that the Indian government is creating a religious test for Indian citizenship that would strip citizenship from millions of Muslims". The Ministry of External Affairs Ministry has condemned saying neither the CAB or National Register of Citizens (NRC) process seeks to strip citizenship from any Indian citizen based on any faith. The Pakistan Prime Minister Imran Khan criticized the proposed citizenship law for violating bilateral agreements.
The research organisation PRS Legislative Research pointed out a serious lacunae in CAB based on Article 14 that grants right to equality and against discrimination based on religion, is that the Bill provides differential treatment to illegal migrants on the basis of their country of origin, religion, date of entry into India, and place of residence in India (regarding exempted northeast India regions).
Not all minorities included!
The CAB does not include all persecuted minorities. Main criticism against the Bill is that it excludes the religiously persecuted minorities of neighbouring nations such as Rohingyas in Myanmar and Tamils in Sri Lanka and lack the explanation of migration with Afghanistan. The inclusion only six specified religious minorities and exclusion of other minorities facing religious persecution, such as Ahmadiyyas in Pakistan and the atheists in Bangladesh, is questioned as breach of equality right.
PRS Legislative Research has also rightly pointed out that the ability to notify any law and lack of clarity of these laws whose violation may result in OCI cancellation may amount to an excessive delegation of powers by the legislature and may give wide discretion to the government for cancellation of OCI.
The US reaction
Within a few hours of the passage of Bill, the US House Foreign Affairs Committee (HFAC) tweeted concern that the Bill "undermines the most basic democratic tenet" of religious pluralism. The panel pointed out that any religious test for citizenship would be contrary to religious pluralism which was described as "one of our core shared values". Responding to query of co-chair Democrat Brad Sherman about discrimination against Muslims on the issue of citizenship, assistant secretary for the Bureau of Democracy, Human Rights and Labour Robert Destro acknowledged that it gives a presumption of citizenship to some religious groups and leaves Muslims out. Sherman has reportedly commented "is this a serious legislative proposal or a just a crackpot idea going nowhere?" The senior US diplomat replied that it was indeed "a serious legislative proposal". But he was hoping that Bill would not go through the upper house".
The Assam and North East question
North east is continuously protesting the CAB, as regions demography of the region will get totally disturbed and increase the burden on resources, decrease employment opportunities for indigenous people. Moreover, it will nullify the provisions of the Assam Accord of 1985 which fixed March 24, 1971 as the cut off date for deportation of all illegal immigrants irrespective of religion. This Accord does not discriminate immigrants on religion grounds. Assam Accord brought peace to that region because of this secular character. The peace is totally disturbed in Assam because this accord is totally breached. As the results of National Register of Citizens were not conducive to Hindutwa agenda of NDA, the CAB has been contemplated. NRC is effectively brought to create a demographic picture which NDA desired and promised. The NRC exercise helps the officers to eliminate the Muslims from the Bangla Immigrants against the letter and spirit of Assam Accord. And CAB further strengthens the agenda as all non-Muslims from Pakistan and Bangladesh will simply get Indian citizenship after a six-year stay here. Muslims in these countries cannot claim to be minorities and they were not persecuted; hence they are not welcome as citizens of India.
Badri Raina, renowned author analysed it: "The presumption also is that since many Muslims chose to leave India in 1947, a remaining "Hindu" India has no obligation to take any back. Thus if Ahmadiyyas, Shias, or Baluchis continue to be persecuted in Pakistan, or Hazaras in Afghanistan and the Rohingya in Myanmar for example, as inauthentic, or non-Muslims, they too may not claim refugee status in India". The NDA government did not care to include Tamilians even if they include Muslim tamilians also, of Sri Lanka in the new law offering citizenship.
When Akhand Bharat (including Afghanisthan, Pakistan, Bangladesh), is the ultimate target of Hindutwa forces, does it mean it does not include Muslims in these three countries? When Muslims in India could be part of Akhand Bharat why Muslims in these three countries could be excluded? Or are we going to send Muslims out of India into these Islamic republic nations to achieve Hindu Akhand Bharat?
There are two strong indicators: 1. The NRC empowered the officers to eliminate them from register of Citizens. 2. The CAB does not allow Muslims from Akhand Bharat before Independence to become citizens, and in addition CAB empowers the administrators to remove the citizenship on the grounds of violation of law.
If partition of India was purely on the ground of Religion, as criticised by Amit Shah, are we aiming to build Bharath and finally Akhand Bharat without Muslims? Does Akhand Bharat means mere union of territories without some of its people?
Are we attempting Re-Constitution of India at 70th year of Indian Constitution without its original values and structure or de-Constitution of India?
M Sridhar Acharyulu, Former Central Information Commission and presently Dean (Law) Bennett University.
This Article was first published in federal.in
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]