Author: Aditya Jha, 1st Year, BBA LL.B (H), Symbiosis Law School, Hyderabad.
The article has been written by the author while pursuing the internship programme with us.
The monsoon and winter session of the year 2019 ended up passing two most controversial but important bills. Firstly, the most controversial abrogation of Art 370 of the Constitution of India which yielded special powers to Jammu and Kashmir and secondly the Citizenship (Amendment) Act 2019 which further witnesses a lot of unrest throughout the nation because it amends the Citizenship Act 1955(hereinafter to be referred as the principal act).
The Constitution of India authorizes Parliament to make and amend provisions related to citizenship. The following amendment brought to the principal act alleviate the process of attaining Indian citizenship for Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from three Muslim majority countries that is Pakistan, Afghanistan and Bangladesh. This bifurcation made on the basis of religion which is going to grant citizenship to the illegal migrant of the above mentioned religious minorities is the bone of contention which will be discussed in further in the article.
WHAT IS CITIZENSHIP AND HOW SOMEONE CAN ATTAIN THAT IN INDIA
A resident of a place who is legally accepted and recognized as a member of the state when such a person holds rights as well as duties against the state is termed as Citizen. In India, the principle of Jus Sanguinis is followed which is Law of Blood or in other words, a person who has Indian blood is an Indian. In India Art 5- 11, Part II of our Constitution constitutes various provisions of Citizenship and also grants power to the Central government to amend those laws.
In India a person can attain citizenship by following ways:-
- Every person who was born in India on or after 26th Jan 1950 but before 1st July 1987 shall be considered as Indian citizen irrespective of the nationality of their parents.
- Every person born in India between 1st July 1987 to 2nd Dec 2004 shall be Indian citizen provided either of his/her parents are Indian during the time of his/her birth.
- Every person who is born on or after 3rd Dec 2004 shall be an Indian citizen provided both or either one of his/her parents is an Indian and the other shall not be an illegal migrant.
- Every person born outside India on or after 26th Jan 1950 shall be an Indian citizen by descent provided his/her father was an Indian by birth.
- Every person born outside India on or after 10th Dec 1992 but before 3rd Dec 2004 shall be an Indian provided either of his/her parents is an Indian by birth.
- Every person, if born outside India on or after 3rd Dec 2004, has to acquire Indian citizenship, his parents have to declare that the minor does not hold passport of any other country and his/her birth shall be registered in Indian consulate within one year of his/her birth.
By Registration Indian citizenship can be acquired by registration after following the below-mentioned rules:
- Shall be Indian origin and resident of India for 7 years before applying for registration.
- A person of Indian origin who is resident of any country outside undivided India.
- Married to an Indian and being resident of India for 7 years before applying for registration.
- Minor children of persons who are citizens of India.
By acquisition of foreign territory If India acquires any country then citizens of that country naturally get Indian citizenship.
By Naturalisation  Ordinarily resident of India for 12 years(throughout 12 months preceding the date of application and 11 years in aggregate) and fulfil all criteria mentioned in the third schedule of Citizenship Act.
OBJECTIVE OF AMENDMENT
The amendment was brought with a motive to confer citizenship and not to deprive it. Hindus, Jain, Sikh, Buddhists, Parsis and Christians face religious persecution in these three Islamic countries that are Pakistan, Bangladesh and Afghanistan. Thus to alleviate the process of obtaining Indian citizenship, this amendment was introduced so as to safeguard the rights and lives of the minorities in the neighbouring country.
- In Section 2, sub-section (1), in clause (b) the following provision is to be inserted:- “Hindu, Parsis, Sikh, Jain, Buddhists and Christian from Pakistan Bangladesh and Afghanistan who entered India before or on 31st December 2014 and who is exempted by the central government or from the requirements of the Passport Act or the Foreigners Act or any law which prevails at the time shall not be treated as illegal migrants”.
- = Section 6B inserted whose clause (3) says: “Migrants who qualify the above-mentioned pre-conditions shall not be treated as illegal migrant and all cases pending in respect to illegal migration should lapse provided he/she is not disqualified to apply for application”
- Section 6B clause (4) says: “Nothing in this section shall apply to Assam, Mizoram, Meghalaya or Tripura as they are included in the Sixth schedule of our Indian Constitution. Also, the area under “The Inner Line” notified under the Bengal Eastern Frontier Regulation 1873 shall be excluded from the sections.”
- Section 7d amended after clause (d) clause (da) is added which says: “If any provision of the act or any other law for the time being in force in India is violated by the Overseas Citizen of India Cardholder then their card should be cancelled provided they get reasonable opportunity to be heard”
- Clause (d) added in Third Schedule of Principal Act which says: “Hindu, Sikh, Parsi, Buddhist, Jain and Christians from Pakistan, Bangladesh and Afghanistan should stay in India for “not less than five years” which earlier was eleven year, for naturalisation”. REASON FOR CONTROVERSY
- After CAB it is usual to anticipate that a large number of refugees will enter Assam from Bangladesh and those who are already in India will get Indian Citizenship hence a risk of loss of culture, land and tradition prevails in Assam. The CAB act seems to strengthen the NRC bill. Those who are left from NRC will be saved on the basis of religion by the CAB which puts Assam in a disadvantageous position.
- Violation of Assam accord which states that all illegal migrants who entered India after 1971 will be deported from Assam irrespective of religion but CAB by providing citizenship to non-Muslim migrants clearly violated the accord.
- Why weren’t Rohingya, Ahmadiyyas and Hazaras included in the bills as they also suffered persecution in Myanmar, Pakistan and Afghanistan respectively?
- Violation of Art 14 and 15 which forms the basic structure of our Indian Constitution.
CONSTITUTIONAL VALIDITY ARGUMENTS IN FAVOR:
- This amendment was brought to confer citizenship not seize, hence the amendment is not applicable for those who already have Indian citizenship.
- The amendment does not violate Art 14 as it contains a provision of Equal protection of the law which states that equality should be between likes not unlike. For proving the violation of Art 14 three points should be taken into consideration. Those are:
- Objective- The amendment was introduced to provide citizenship to minorities who are facing religious persecution in three Islamic nations Pakistan, Afghanistan and Bangladesh.
- Intelligible differentia – The amendment includes not only Hindus but also Sikh, Jain, Parsis, Buddhists and Christians which make it evident that all minorities are included. If only Hindus were included then that would be against intelligible differentia.
- Rational Nexus– Through the amendment religiously persecuted minorities from these nations are getting citizenship, hence there is no violation of Art 14.
- Shia Muslims, Ahmadyyis, Rohingya and Hazararas faced ethnic persecution hence were not included in the amendment.
- There is no violation of Art 15 which states that “State shall not discriminate against its citizen on the ground of race, caste, creed, sex and religion”. The article clearly applies to only citizens whereas the amendment talks about providing citizenship to foreign minorities from the three above mentioned Islamic nations, hence no violation of Art 15.
- Art 21 which gives “Right to Life and Personal Liberty” is also not applicable as it also is applicable only on citizens.
- The Parliament under Art 11 has the right to amend provisions of the Principal Act and add new provisions in it.
- India is a secular country and the amendment violates secularism as it grants citizenship on the basis of religion.
- Discrimination with refugees who fled from their nation for the social, economic and religious problem is clearly evident from the clause of the act as non-muslim refugees will get Indian citizenship and rest will be deported.
- “There should be a yardstick for intelligible differential,” said in Anwar Ali Sarkar case. Also in the judgement of Section 377, Justice Indu Malhotra said that “personal traits can’t be used as a reasonable classification” and in present case religion is used as a base for classification which is a fundamental trait of a human, hence this yardstick is invalid which makes the act unconstitutional.
- Just the way Israel designates it as the home of Jews, India is also designating that it is home for Hindus. This is against the spirit of secularism.
- Assam Accords clearly mentions that all Bangladeshi refugees irrespective of their religion, will be deported to Bangladesh but the amendment gives Bangladeshi Bengali Hindu refugees citizenship which is a clear violation of Assam Accords.
- Rohingyas of Myanmar are the most persecuted minorities in the world. Why weren’t they included in the amendment?
As written in BJP’s election manifesto, the Citizenship (amendment) act 2019 was passed which renders citizenship to the minorities who faced religious persecution in Pakistan, Bangladesh and Afghanistan. But this bill seems to compromise the secular nature and base of our nation and also has become a source of agitation for Assam and other north-eastern states because these states are primarily inhabited by the tribal who fear the loss of their culture and traditions. After this amendment a large number of refugees (Bangladeshi Bengali Hindu) who will now be converted into citizens will reside there, increase their population density and dilute their cultures. According to the report, around 30,000 refugees will get a direct benefit from this amendment. But these minorities shall be protected as countries like Pakistan in an instance refused to serve food to Hindus and Christians, minority population which includes Buddhists, Hindus, and Christians in Bangladesh decreased from 23.1% in 1971 to 9.6% in the present day and in Afghanistan as well the census found a steep decline in the minorities which includes Hindus and Muslims. All these instances make these minorities very vulnerable and it becomes necessary for a country like India to protect the interest of these minorities, hence the motive of the act can’t be claimed as unconstitutional. Making laws lies in the hand of the legislature but those laws should not affect the secularism of our country which is the fundamental of our Constitution.
 INDIA CONST. art. 11.
 What is CAA?, TOI, January 09, 2020, https://timesofindia.indiatimes.com/india/what-is-caa/articleshow/73153785.cms.
 Ibid 1.
 The citizenship rules of India: Everything you need to know, TIE, Nov 7, 2015, https://indianexpress.com/article/india/india-news-india/subramanian-swamy-vs-rahul-gandhi-the-citizenship-rules-of-india/.
 Ibid 2.
 The Citizenship (Amendment) Act, 2019, Section 2(1B), Acts of Parliament, 2019 (India).
 The Citizenship (Amendment) Act, 2019, Section 6B(3), Acts of Parliament, 2019 (India).
 The Citizenship (Amendment) Act, 2019, Section 6B(4), Acts of Parliament, 2019 (India).
 The Citizenship (Amendment) Act, 2019, Section 7(DA), Acts of Parliament, 2019 (India).
 The Citizenship (Amendment) Act, 2019, Third Schedule Clause (d), Acts of Parliament, 2019 (India).
 INDIA CONST. art. 15.
 INDIA CONST. art. 21.
 The State of West Bengal v. Anwar Ali Sarkar, A.I.R 1952 S.C 75 (India).
 Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 (India).
 International Christian Concern, Minorities in Pakistan claimed they were refused aid due to their religious identity, Persecution (March 30, 2020, 1:28 a.m), https://www.persecution.org/2020/03/30/minorities-pakistan-claim-refused-aid-due-religious-identities/.
 Minorities and indegionious people in Bangladesh, Minority Rights Group International (July 2018, 1:34 a.m), https://minorityrights.org/country/bangladesh/.
 Minorities and indegionious people in Afghanistan, Minority Rights Group International (July 2018, 1:34 a.m), https://minorityrights.org/country/bangladesh/.