Citizenship (Amendment) Act 2019 [Analysis]

WHAT IS CITIZENSHIP?

Citizenship to be understood we need to first understand what citizen means.

 

MODES OF ACQUISTION of citizenship are mentioned under THE CITIZENSHIP ACT 1955. DEFINITION OF CITIZENSHIP or what citizen means IS NOT MENTIONED ANYWHERE hence we rely on dictionary meaning which states “a person who is legally recognized as a member of a country.”

The term citizenship refers to the enjoyment of full membership of a state in which a citizen; enjoys civil and political rights. It can be determined as a legal relationship of an individual with a particular state which is expressed by pledging his loyalty towards state and by carrying out duties like paying taxes, serving in the army during need, respecting national principles and values etc.

So to establish there is thin line of difference between nationality & citizenship.


The nationality is an ethnic or racial concept. On the other hand, citizenship is a legal or juristic concept.

The nationality of a person indicates his/her place or country of birth while the citizenship of a person shows that the individual is registered as a citizen by the government of the respective country.


A person can become a national of a country by birth or by inheritance. As against this, there are a variety of ways through which an individual can become the citizen of a country, i.e. by birth, inheritance, marriage, naturalization or registration.

After Bill for amendment was signed by president  bill has become The Citizenship (Amendment) Act,2019 & will be enforceable.

The recent amendment to citizenship Act has sparked controversy hence we need to inspect its provisions.







Constituent Assembly debates with regards to Citizenship

We need to keep in mind the view of framers of the constitution with regards to citizenship as well you can see that the majority of Debate states the status of citizenship which was to be granted after fulfilment of conditions where either born in India or parents or grand-parents were domiciled in India or had migrated to India prior to a date(19th July 1948 in case of migration from Pakistan) or born outside India but residing in India e.t.c

There was one such amendment which introduced had similar motive as that of the objective of THE CITIZENSHIP (AMENDMENT) ACT, 2019, it was introduced by P.S Deshmukh in Article 5 the wordings of which stated


“every person who is a Hindu or a Sikh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India.”


It was further negativated.

“We are plighted to the principles of a secular State. We may make a distinction between people who have voluntarily and deliberately chosen another country as their home and those who want to retain their connection with this country.

But we cannot on any racial or religious or other grounds make a distinction between one kind of persons and another, or one sect of persons and another sect of persons, having regard to our commitments and the formulation of our policy on various occasions,” Alladi Ayyar said during the debate on Article 5 of the Indian Constitution


Hence framers of Constitution had rejected grant of citizenship on religious ground.


Need for this Amendment & Government’s Justification

The STATEMENT OF OBJECTS AND REASONS mentions the objective this Act wants to achieve. The objective of this Act is to ease the process of granting Citizenship to religiously persecuted minorities who have either religious origin or connection with India .

Prior to this Amendment all person’s who were staying here with incomplete documents or expired permits were treated as ill-legal migrants but after this Amendment there is relaxation given to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities if terms of their documents as well.

In History Refugees if conditions become normal in their Countries return back to their motherland but Centre feels it will not be in best interest of refugees to be sent back in 3 mentioned countries i.e Afghanistan,Pakistan & Bangladesh.

As the Parliament derives power under Article 11 to make decisions with regards Citizenship it has excercised its power,the presumption of every law being constitutional when made,although still HON’BLE apex court will examine it & has power to declare such amendment un-constitutional if found violative of basic structure.
This Act is giving citizenship through naturalisation, criteria of religion is  for not be
treated as an ill-legal migrant.




RELATED PROVISIONS IN CONSTITUTION

Part II of the Constitution mentions about citizenship, throughout this part there is no bar or a criteria of religion mentioned even Article 6 which specifically mentions about Rights of Citizenship of certain persons who have migrated to India from Pakistan only puts condition of whether his/her parents or any of grand-parents were born in India as defined in Government of India Act,1935. Or puts condition of a migration before a given date & if migrated after that if he makes application he has to be resident for preceeding 6 months before application. Here as well religion is not a ground.

Part III of Constitution mentions about Fundamental Rights & few of these in its ambit cover ‘person’ which includes foreigners as well.

Article 14 which is a negative Right, in provision clearly states

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

To make a classification we need refer to The State Of West Bengal vs Anwar Ali Sarkar 1952 AIR 75, the Hon. Supreme Court has laid down two tests:

(i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group

(ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there 'Must be a nexus between the basis of classification and the object of the Act under consideration.

The distinction made here between is not directly provided in the Act but in

STATEMENT OF OBJECTS AND REASONS which was provided by parliament as to derive the intent of legislature.

Although above clause mentions that person from these communities may not be treated as an ill-legal migrant & is only applicable to people who entered India on or before 31st DEC 2014.

Now question arises as even though trans-border, migration & various other issues are mentioned in the object still Indian Constitution which is Secular can permit such classification wherein only few communities based on their religion will be granted citizenship.

The Objective of this Legislation is making a terminological bifurcation between Religious persecution due to observing one’s Faith & Sectarian Violence(wherein few sects of same religion try to dominate or over-throw each other). The 3 Countries mentioned have a state-religion(although that cannot be a ground to negotiate with our Constitutional values). Granting citizenship to people affected by sectarian violence is not an objective of the bill. The Act addresses connection with people who have religious origin or ethnic connection with India.

Pakistan(with bangladesh) has failed to fulfill it duties towards religious minorities as stated in Nehru-Liaquat pact,1950. Hence India can take a step ahead for minority protection.

R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Co-joined Appeals (UN High Commissioner for Refugees Intervening)

The judgment suggested that the ‘test’ should consider whether there is an evidence of a “real & substantial danger of persecution”.

Current Population decline of religious minorities in these 3 countries either due to death(due to religious violence),conversion,migration can hold a Just ground for such bifurcation.

FOREIGNERS ACT 1946 u/sec 3A gives power to government for exemption of any individual or class from application of the said Act. It was done for the above minorities in Foreigners (Amendment) Order, 2015 by way of amendment notification. This was essential in the nature of a one-time waiver or amnesty granted to these migrants from minority communities.

Statute's amendment is not depriving any person of applying for citizenship but rather has extended its purview for certain class of people in 3 countries with certain other requirements as well. There is no constitutional obligation to provide citizenship to an ill-legal migrant or confer refugee status or asylum to any person.

Article 25 & 27 will have contradictions with the said amendment but this amendment is not forcing anyone to convert or stopping one from professing their religion,nor has stated that any money be used for rehabilitation or any sum be given as benefits to these religious minorities,the silence here speaks for itself that amendment is just to extend support to such minorities without any monetary help for religious issue.

This a step for protection rather than promotion or mainteanance of a religion. Even if any indirect religious connections exist, monetary benefits can be interpretated as per prafull goradia Case.

 Prafull goradia v U.O.I (2011) 2 SCC 568 in which proceeds of tax need to be specifically stated to be used maintainance or promotion of religion or substantial amount of tax collected is used in violation of this article needs to be shown.

 Even term religion used is when a single religion is addressed whereas in this case multiple religions are involved,such benefits have been given to various minorities in jio parsi scheme,christian pilgrimage, hajj subsidy e.t.c


There are questions raised that if some person who by fraud obtains citizenship what will be the consequences.

Even if that is the case sec10(2)(a) provision is yet un-amended. States too cannot block implementation of this Act as this matter falls under Union list & Article 256 needs to be complied with.

In Constituent Assembly on 12th August 1949 the amendment was negatived & ground of religious lines for citizenship was rejected but the wordings stated “every person who is a Hindu or a Sikh and is not a citizen of any other State shall be entitled to be a citizen of India.”

This amendment is helping those who are already staying in India before the given date & not “every person” so religious line argument cannot be considered at par.

This Act shall not apply to certain mentioned tribal areas in north east.



Is the Amendment Act violative of Basic Structure?

Basic Structure is not defined in the Constitution but it is through inference & interpretation of the court that it can be figured out. One can argue Parliament is also trying to go against doctrine of colourable legislation i.e trying to do something indirectly which it cannot do directly. The ultimate citizenship will be granted through nexus of religion only, but one cannot forget it has a reasoning i.e persecution due to one professes that religion also people have ethnic ties or their religions roots originates in India.

If this Act is declared un-constitutional still some of its part will still be operative which is not much discussed i.e this amendment has extended & empowered the Central Government to cancel registration as Overseas Citizen of India Cardholder, after providing a reasonable opportunity of being heard, in case of violation of any provisions of the Citizenship Act or any other law for the time being in force. This part of amendment can still stay operative.

Word ‘Secular’ in preamble should remind that religion should be kept away from state in maximum possible regards. So can a religion of refugee be looked at? Although it is also a fact that depletion of population in 3 subject countries of these minorities is due to death,migration or conversion. But a refugee is a refugee,hence religion while grant of citizenship may hold discriminatory.



Political & Religious Reasons

The political reason’s are many, it is no hidden fact that vote-bank politics & appeasement of religion is done to get votes .

There may be other agenda driven politics too but the main argument made everywhere is Muslims have various Islamic nations to look forward too, also few arguments made are India is natural home to all Hindus in the world.

But we must not forget that whatsoever reason maybe the foundation of India is not done on any religious ground. Neither our Constitution discriminates amongst individuals on basis of religion. There are no fixed parameters yet as to what is to be done with any refugee but identification of refugee guidelines do exist. Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees regarding religious persecuted refugees.  Many argue that this is not a just classification also further distinguishing between a citizen & ill-legal migrant will be a religious based one but onus of proof to show an individual as a religiously persecuted person from that minority will be on him.



Repercussions on Unity & Integrity of India

Although,this amendment doesn’t touch any existing citizenship of muslims,but NRC which derives its power from sec 14-A of THE Citizenship Act, 1955.

 If people who have lived here for generations or decades due to certain missing or incorrect or expired documents will be treated as an ill-legal migrant then this will hamper the harmony of this country, also recent statement by Pakistan’s PM that they won’t take any people back from India who will be deported. UN too has asked to reconsider on this decision.

 A minister recently stated that India is not open to ill-legal migrants and that person should seek citizenship in a legal manner or take asylum/refugee in legal way. There may be a sense of division between religions if any bifurcation is made on basis of faith one follows.Although for persecuted refugees this amendment is sense of relief. Major policies which government is doing today were already mentioned in manifesto which after getting elected in democratic way cannot be called a hidden agenda.

There are two types of protests going on few in other countries as well, one is pro-cab & other anti-cab both have their own reasons,but more protest are drawn against NRC as it requires certain documents from prior to 1971 to be shown and some claim documents given until now considered to prove citizenship are not enough.



 Effect on INDIA’S International Relation

UN has asked India to reconsider this issue, U.S and some other countries too have stated that this law is discriminatory, Pakistan has started to oppose it in light of their propaganda. Gulf countries are still making treaties,and recent treaty signed with Saudi Arabia for security co-operation signed this October has got a cabinet nod for implementation(as per PIB report).

It is by an large viewed by them as internal-matter which may not be interfered with. As every country has a right to decide its own policy for future and cannot be dictated by any other nation as all nations are equally soverign.

Although our image of multi-cultured country who absorbed in all refugees as our own family will be altered but presently the policy making government is excercising its power regarding framing of rules for citizenship under Article 11, even they are elected government by democratic mandate. Many countries around world have taken radical steps in various regards on problems they faced we are still approaching in a democratic way.



SOCIAL AND ECONOMIC CONSEQUENCES

Implementation of this Act read with NRC will incur huge cost as to set up a infra-structure & implement this is a big task, Bringing NRC in this topic is because in few government clarifications & notices issued NRC is called second big step after NPR which in has to be read in light of this Act.

As the main motto of this act is to shield those religious minorities from clutches of NRC. Socially this might create class between people, In Assam itself NRC has incurred a good amount of expense while nation wide NRC will take more, corruption angle must also be looked into regarding that officers on job need to do job with full honesty, No where is any backup plan mentioned in this regard to how to stop all single possibilities of corruption ensuring full transperancy as well. Also time consumed of people while this process will again hamper their individual livelihood.




Conclusion
Although Objective of Act is to provide & extend benefits to persecuted minorities in need but the criteria of religion is discriminatory,provided one must also look in history that religion is also the reason that they are persecuted.