- Then, spurred by the populist movements alleging massive illegal migrations from Bangladesh, citizenship laws were first amended to additionally require that at least one parent should be Indian.
To know more about citizenship in India, refer to the linked page.
Who is an illegal migrant in India?
Under the Act, an illegal migrant is a foreigner who:
- Enters the country without valid travel documents like a passport and visa, or
- Enters with valid documents, but stays beyond the permitted time period.
Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.
Read about Migration & India in the linked article.
The scenario before the passing of the Act
- Under the existing laws, an illegal migrant is not eligible to apply for acquiring citizenship. They are barred from becoming an Indian citizen through registration or naturalization.
- The Foreigners Act and the Passport Act debar such a person and provide for putting an illegal migrant into jail or deportation.
- Section 5 (a) of Citizenship act of 1955: A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration;
- And they should have lived in India continuously for 12 months before submitting an application for citizenship.
What the Act intends to do?
- The Citizenship Amendment Act 2019 aims to make changes in the Citizenship Act, the Passport Act, and the Foreigners Act if undocumented immigrants belong to religious minority communities from three neighbouring countries of Bangladesh, Pakistan, and Afghanistan.
Features of CAA 2019
- The Act seeks to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian undocumented immigrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India. In other words, the Act intends to make it easier for persecuted people from India’s neighbouring countries to become citizens of India.
- The legislation applies to those who were “forced or compelled to seek shelter in India due to persecution on the ground of religion”. It aims to protect such people from proceedings of illegal migration.
- Such persons shall be deemed to be citizens of India from the date of their entry into India, and
- All legal proceedings against them in respect of their illegal migration or citizenship will be closed.
Exception
- The Act adds that the provisions on citizenship for undocumented immigrants will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule of the Constitution.
- These tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.
It is against Muslims
- The fundamental criticism of the Act has been that it specifically targets Muslims. Thus, the religious basis of citizenship not only violates the principles of secularism but also of liberalism, equality, and justice.
- It fails to allow Shia, Balochi, and Ahmadiyya Muslims in Pakistan and Hazaras in Afghanistan who also face persecution, to apply for citizenship.
- A key argument by the critics against the CAA is that it will not extend to those persecuted in Myanmar and Sri Lanka, from where Rohingya Muslims and Tamils are staying in the country as refugees.
It violates Article 14
- Critics argue that it is violative of Article 14 of the Constitution, which guarantees the right to equality.
- The CAA is in the teeth of Article 14, which not only demands reasonable classification and a rational and just object to be achieved for any classification to be valid but additionally requires every such classification to be non-arbitrary.
- One of the criticisms is that this Act is an instance of class legislation, as classification on the ground of religion is not permissible.
Why North East is objecting to CAA?
- In the Northeastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties, including fears of demographic change, loss of livelihood opportunities, and erosion of the indigenous culture.
- The Act appears to violate the Assam Accord, both in letter and spirit.
- The Assam Accord, signed between the then Rajiv Gandhi-led central government and the All Assam Students’ Union (AASU), had fixed March 24, 1971, as the cutoff date for foreign immigrants. Those illegally entering Assam after this date were to be detected and deported, irrespective of their religion.
- The Citizenship Amendment Act moved the cutoff date for six religions to December 31, 2014, something that is not acceptable to the Assamese-speaking people in Brahmaputra Valley, who insist that all illegal immigrants should be treated as illegal.
- Also, since these will be legitimate citizens, there will be more people joining the queue of job hopefuls that can potentially lower opportunities for the indigenous and the locals.
- There is a view that illegal immigrants, who will eventually become legitimate citizens, will be determining the political future of the state.
Other issues surrounding CAA
- CAA does not consider Jews and atheists. They have been left out of the Act.
- The basis of clubbing Afghanistan, Pakistan, and Bangladesh together and thereby excluding other (neighbouring) countries is unclear.
- A common history is not ground as Afghanistan was never a part of British India and was always a separate country.
- The reason stated in the ‘Statement of Objects and Reasons’ of the Act is that these three countries constitutionally provide for a “state religion”; thus, the Act is to protect “religious minorities” in these theocratic states.
- The above reasoning fails with respect to Bhutan, which is a neighbour and constitutionally a religious state with the official religion being Vajrayana Buddhism.
- Non-Buddhist missionary activity is limited, construction of non-Buddhist religious buildings is prohibited and the celebration of some non-Buddhist religious festivals is curtailed. Yet, Bhutan has been excluded from the list.
- On the classification of individuals, the Act provides benefits to sufferers of only one kind of persecution, i.e. religious persecution neglecting others.
- Religious persecution is a grave problem but political persecution is also equally existent in parts of the world. If the intent is to protect victims of persecution, the logic to restrict it only to religious persecution is suspect.
- As per critics, the provisions of CAA might lead to a situation where a Rohingya who has saved himself from harm in Myanmar by crossing into India will not be entitled to be considered for citizenship, while a Hindu from Bangladesh, who might be an economic migrant and have not faced any direct persecution in his life, would be entitled to citizenship.
- Similarly, a Tamil from Jaffna escaping the atrocities in Sri Lanka will continue to be an “illegal migrant” and never be entitled to apply for citizenship by naturalization.
It is not against Muslims
- The Ahmediyas and Rohingyas can still seek Indian citizenship through naturalization (if they enter with valid travel documents).
- In any case, since India follows the principle of non-refoulment (even without acceding to the Refugee Convention 1951), they would not be pushed back.
- If a Shia Muslim is facing persecution and is in India seeking shelter, his case to continue to reside in India as a refugee shall be considered on its merits and circumstances.
- With regard to Balochi refugees, Balochistan has long struggled to be independent of Pakistan and including Balochis in the CAA could be perceived as interference in Pakistan’s internal affairs.
- The CAA, therefore, does not exclude Muslims from Pakistan, Bangladesh, and Afghanistan from applying for Indian citizenship. They can continue to do so in the same way singer Adnan Sami, for example, applied for citizenship.
- Salve stated that the countries specified in the CAA have their own state religion and Islamic rules. He added that Islamic-majority nations identify their people as those who follow Islam and those who do not. Addressing governance problems in neighbouring countries is not the purpose of the CAA.
- Over the issue of Rohingyas, Salve stated that a law that addresses one evil does not need to address all the evils in all countries. It is notable here that Myanmar, though a Buddhist majority nation, does not have a state religion and Myanmar does not feature in the CAA bill.
The Act is not a violation of Article 14
Sovereign space
- To begin with, the justiciability of citizenship or laws that regulate the entry of foreigners is often treated as a ‘sovereign space’ where the courts are reluctant to intervene.
- Thus in Trump v Hawaii No. 17-965, 585 U.S. (2018), the US Supreme Court upheld a travel ban from several Muslim countries holding that regulation of foreigners including ingress is a “fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.”
- Indian courts have generally followed similar reasoning. In David John Hopkins vs. Union of India (1997), the Madras High Court held that the right of the Union to refuse citizenship is absolute and not fettered by equal protection under Article 14.
- Similarly in Louis De Raedt vs. Union of India (1991), the Supreme Court held that the right of a foreigner in India is confined to Article 21 and he cannot seek citizenship as a matter of right.
With respect to North East
- Citizenship Amendment Act does not dilute the sanctity of the Assam Accord as far as the cut-off date of March 24, 1971, stipulated for the detection/deportation of illegal immigrants is concerned.
- The Citizenship Amendment Act is not Assam-centric. It applies to the whole country. The Citizenship Amendment Act is definitely not against the National Register of Citizens (NRC), which is being updated to protect indigenous communities from illegal immigrants.
- Further, there is a cut-off date of December 31, 2014, and benefits under the Citizenship Amendment Act will not be available for members of the religious minorities who migrate to India after the cut-off date.
Historical Connections
- The Act does not give a carte blanche to Hindus, Christians and Sikhs from other countries to come to India and get citizenship. Just these three countries. Why?
- Because each of these has been civilizational ties with India. The circumstances in which they were partitioned from India have created a situation where Hindus and other minority populations have been dwindling ever since the partition took place.
- Regarding including other countries in the neighbourhood the argument could be that we can deal with them separately if the need arises as we did in the case of persecuted Sri Lankan Tamils.
The parliament has unfractured powers to make laws for the country when it comes to Citizenship. But the opposition and other political parties allege this Act by the Government violates some of the basic features of the constitution like secularism and equality. It may reach the doors of the Supreme Court where the Supreme Court will be the final interpreter. If it violates the constitutional features and goes ultra-wires it will be struck down, if it is not we will continue to have the law.
But one most important thing is, that an equilibrium has to be attained by New Delhi as this involves neighbouring countries too. Any exaggerated attempt to host the migrants should not be at the cost of goodwill earned over the years. India being a land of myriad customs and traditions, the birthplace of religions and the acceptor of faiths and protectors of persecution in the past should always uphold the principles of Secularism going forward.
Nehru-Liaquat Pact- It was an agreement between the Governments of India and Pakistan regarding the Security and Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan
- The need for such a pact was felt by minorities in both countries following Partition, which was accompanied by massive communal rioting.
- In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.
Under the Nehru-Liaquat pact
- refugees were allowed to return unmolested to dispose of their property
- abducted women and looted property were to be returned
- forced conversions were unrecognized
- minority rights were confirmed
What did India and Pakistan agree upon?
- “The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the pact said.
- “Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other offices, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively.”
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Amit Shah referred to the Nehru-Liaquat pact on a few occasions in Parliament to justify the Citizenship Act.
Frequently Asked Questions related to Citizenship Amendment Bill 2019
What is the new Citizenship Amendment Bill 2019?
Parliament of India had passed a new bill that offers amnesty to religious minorities persecuted in Pakistan, Afghanistan and Bangladesh. The Citizenship Amendment Bill 2019 will offer Indian citizenship to Hindus, Buddhists, Christians, Sikhs, Jain and Parsi communities who had faced religious atrocities in the above 3 countries.
Is the NRC bill passed in India?
The National Register of Citizens (NRC) is a register of all Indian citizens whose creation is mandated by the 2003 amendment of the Citizenship Act, 1955. Its purpose is to document all the legal citizens of India so that illegal immigrants can be identified and deported. NRC exercise was carried out in Assam, however, the exercise was fraught with many complications and criticisms. Hence, it has been put on the back burner.
There are other important national issues that are important from current affairs’ perspectives:
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