The Citizenship Amendment Bill (CAB) became law after receiving the President’s assent on Thursday, following a bruising debate in Parliament . Assam has been in the throes of violence since Wednesday, when Rajya Sabha took up the Bill after it was passed in Lok Sabha , with its capital under indefinite curfew, and Army and paramilitary columns rolling across multiple towns.
At least three Opposition ruled states — Kerala, Punjab and West Bengal —have said they will not implement the new citizenship law, and l egal challenges have been made in the Supreme Court.
Why is a change in the law, which the government claims is sympathetic and inclusionary, being called unconstitutional and anti-Muslim, and triggering such powerful reactions?
In Assam, what is primarily driving the protests is not who are excluded from the ambit of the new law, but how many are included. The protesters are worried about the prospect of the arrival of more migrants, irrespective of religion, in a state whose demography and politics have been defined by migration. The Assam Movement (1979-85) was built around migration from Bangladesh, which many Assamese fear will lead to their culture and language being ovetaken, besides putting pressure on land resources and job opportunities.
The protesters’ argument is that the new law violates the Assam Accord of 1985 , which sets March 24, 1971 as the cutoff for Indian citizenship. This is also the cut-off for the National Register of Citizens (NRC) in Assam, whose final version was published this year. Under the new law, the cutoff is December 31, 2014, for Hindus, Christians, Sikhs, Parsis, Buddhists and Jains from Pakistan, Bangladesh and Afghanistan. It has become controversial largely because it excludes Muslims.
Under Article 6 the Constitution, a migrant from Pakistan (part of which is now Bangladesh) is to be granted citizenship if she entered India before July 19, 1948. In Assam, which has seen large-scale migration from East Pakistan (later Bangladesh), a migrant will get citizenship if she entered the state before the 1971 date mentioned in the Assam Accord.
As far as illegal immigrants are concerned, India does not have a national policy on granting asylum or refugee status. The Home Ministry, however, has a standard operating procedure for dealing with foreign nationals who claim to be refugees. The government has dealt with refugees on a case-by-case basis by either granting them work permits or long-term visas. Significantly, there was no provision in the Citizenship Act to grant citizenship particularly to minorities or refugees till the latest amendment.
Under The Citizenship Act, 1955, there are four ways to obtain citizenship.
Citizenship by birth: In 1955, the law provided that anyone born in India on or after January 1, 1950 would be deemed a citizen by birth. This was later amended to limit citizenship by birth to those born between January 1, 1950 and January 1, 1987.
It was amended again by the Citizenship Amendment Act, 2003; those born after December 3, 2004 will be deemed a citizen of India by birth if one parent is an Indian and the other is not an illegal immigrant. So, if one parent is an illegal immigrant, the child born after 2004 will have to acquire Indian citizenship through other means, not simply by birth. The law describes an illegal migrant as a foreigner who: (i) enters the country without valid travel documents, like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
Citizenship by descent: A person born outside India and who has at least one Indian parent will be granted citizenship provided that the birth is registered within 1 year with the Indian consulate in the jurisdiction.
Citizenship by registration: This is for persons related to an Indian citizen through marriage or ancestry.
Citizenship by naturalisation: Section 6 of the Citizenship Act states a certificate of naturalisation can be granted to a person who is not an illegal immigrant and has resided in India continuously for 12 months before making an application. Additionally, in the 14 years before the 12-month period, the person must have lived in india for at least 11 years (relaxed to five years for the categories covered under the new amendment).
Waiver: If in the opinion of the central government, the applicant has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions in the Act. This is how the Dalai Lama or Adnan Sami, the Pakistani singer, were granted Indian citizenship.
Home Minister Amit Shah referred to the amendment as bringing relief to ‘lakhs and crores of non-Muslim refugees from Pakistan, Bangladesh and Afghanistan’. As of December 31, 2014, the government had identified 2,89,394 ‘stateless persons in India’, according to data presented in Parliament by the Home Ministry in 2016. The majority were from Bangladesh (1,03,817) and Sri Lanka (1,02,467), followed by Tibet (58,155), Myanmar (12,434), Pakistan (8,799) and Afghanistan (3,469). The figures are for stateless persons of all religions.
For those who came after December 31, 2014, the regular route of seeking refuge in India will apply. If they are regarded as illegal immigrants, they cannot apply for citizenship through naturalisation, irrespective fo religion.
Editorial Poisonous Citizenship Amendment Bill should have been stopped in the House. The Judiciary must rise to the Constitution’s defence
In Rajya Sabha, the Home Minister relied on news reports as evidence of religious persecution against Hindus in Pakistan, ranging from forced conversion to demolition of temples. Notable examples were Asia Bibi, a Pakistani Christian convicted of blasphemy who spent eight years on death row before being acquitted by the Pakistan Supreme Court.
In Bangladesh, cases of killings of atheists by Islamic militants are well-documented. While Shah claimed that persecution has been rampant since the death Sheikh Mujibur Rehman, Bangladesh’s present Foreign Affairs Minister A K Abdul Momen has denied any religious persecution.
Although Shah referred to non-Muslim religions as persecuted minorities, the law avoids using the word persecution in its text.
Legal experts and Opposition leaders have argued that it violates the letter and spirit of the Constitution . One argument made in Parliament is that the law violates Article 14 that guarantees equal protection of laws. According to the legal test prescribed by courts, for a law to satisfy the conditions under Article 14, it has to first create a ‘reasonable class’ of subjects that it seeks to govern under the law.
Second, the legislation has to show a ‘rational nexus’ between the subject and the object it seeks to achieve. Even if the classification is reasonable, any person who falls in that category has to be treated alike. If protecting the persecuted minorities is ostensibly the objective of the law, then the exclusion of some countries and using religion as a yardstick may fall foul of the test.
Further, granting citizenship on the grounds of religion is seen to be against the secular nature of the Constitution which has been recognised as part of the basic structure that cannot be altered by Parliament.
Shah argued that ‘persecuted minorities in three neighbouring countries, Pakistan, Bangladesh and Afghanistan, whose state religion is Islam’, is a reasonable classification.
Another argument is that the law does not account for other categories of migrants who may claim persecution in other countries.
The law will not extend to those persecuted in Myanmar (Rohingya Muslims) and Sri Lanka (Tamils) . Shah has repeatedly made statements that not a single Rohingya Muslim will be allowed in India. Further, by not allowing Shia and Ahmadiyya Muslims who face persecution in Pakistan, or the Hazras, Tajiks and Uzbeks who faced persecution by the Taliban in Afghanistan, the law is being seen as potentially violating Article 14. In Parliament, Shah argued that Muslims can never be persecuted in Islamic countries.
Defending the exclusion of Shias and Ahmadiyyas from Pakistan, BJP MP Subramanian Swamy said a persecuted Shia would rather go to Iran than come to India.
About Sri Lanka and Bhutan, Shah insisted that neither country has Islam as the state religion. Incidentally, both Bhutan and Sri Lanka offer constitutional patronage to the state religion, Buddhism.
The Second Constitutional Amendment in Pakistan declared the Ahmadiyyas to be ‘non-Muslims’ and their penal code makes it criminal for Ahmadis to refer to themselves as Muslims, and places restrictions on the community including denying it the right to vote.
In 2016, the US Commission on International Religious Freedom recommended declaring Pakistan a tier-1 Country of Particular Concern for severe violations of religious freedom under the International Religious Freedom Act. In August this year, the US, the UK and Canada expressed concerns about religious oppression in China and Pakistan in a meeting on safety of religious minorities in armed conflict.
On the face of it, the amendment is not to exclude any Indian citizen. However, the NRC in Assam and the latest citizenship law cannot be decoupled. The final NRC left out over 19 lakh people. The new law gives a fresh chance to the Bengali Hindus left out to acquire citizenship, whereas the same benefit will not be available to a Muslim left out, who will have to fight a legal battle.
Shah and BJP leaders have maintained that the NRC process in Assam will be replicated in the rest of the country, fuelling fears among Indian Muslims. Plugged with NRC, the new amendment becomes an enabling law to potentially disenfranchise an individual of a religion not mentioned in the amendment.
Politically, the law is expected to impact West Bengal and Northeastern states. Assam and West Bengal head for polls in 2021.
Exclusion of Hindus is a possibility. However, the citizenship law can shield many such Hindus. Shah said in Parliament that no documents or proof of persecution will be asked of non-Muslim minorities when applying for citizenship.
Congress leader Kapil Sibal said in Rajya Sabha that a Hindu left out of the NRC in Assam, and who will now apply under the new law, would effectively be lying. In the NRC process, an individual would have submitted an application that she is an Indian. Now, while applying for citizenship, she would have to submit that she fled Bangladesh, Afghanistan or Pakistan where she faced religious persecution.
However, an exercise like the NRC, which cost approximately Rs 12,000 crore in Assam alone and took years, will be mind-boggling for all of India in terms of scale and cost. Unlike Assam, where there was broad political and public consensus for NRC, a pan-India NRC is likely to be resisted by parties, governments, groups, and individuals.
In the aftermath of Partition and the communal riots that followed, Prime Ministers Jawaharlal Nehru and Liaquat Ali Khan signed a treaty, also known as the Delhi Agreement, on security and rights of minorities in their respective countries. India had constitutional guarantees for rights of minorities and Pakistan had a similar provision in the Objectives Resolution adopted by its Constituent Assembly. Shah claims India has kept its end of the bargain while Pakistan has failed, and it is this wrong that the new law seeks to correct.
The non-BJP ruling parties in these states are making a political point. Citizenship, aliens and naturalisation are subjects listed in List 1 of the Seventh Schedule and fall exclusively under the domain of Parliament.
Most states of the Northeast are, however, wholly or partially exempted under special provisions for tribal areas, such as Inner Line Permit (Arunachal Pradesh, Nagaland, Mizoram and now extended to Manipur) and the Sixth Schedule with special provisions in practically all of Meghalaya, and a large chunk of Tripura.
In Assam, three Autonomous Districts are exempted but the new law remains applicable to the major area. This also raises the question: can there be two citizenship laws applicable to the same state?
Under Clause 5.8 of the Assam Accord, ‘Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and practical steps shall be taken to expel such foreigners.’
It was signed on August 15, 1985 by the Governments of India and Assam, and the All Assam Students’ Union and the All Assam Gana Sangram Parishad in New Delhi. It came at the end of a six-year mass movement, spearheaded by students, against illegal migration from East Pakistan/Bangladesh.
The process of identifying foreigners was laid down in the Illegal Migrants (Determination by Tribunals) Act of 1983, applicable only to Assam. In 2005, it was struck down by the Supreme Court as unconstitutional. The petitioner, Sarbananda Sonowal (now Assam Chief Minister), had argued that the provisions were so stringent that it virtually made ‘detection and deportation of illegal migrants almost impossible’.
The present NRC (an update of the existing NRC of 1951) began in 2013. On a litigation by NGO Assam Public Works seeking removal of names of illegal immigrants from the voters list, the Supreme Court relied on two rulings on cases filed by Sonowal, and justified its intervention to update the NRC. The process was monitored by the Supreme Court.
This was added to the Assam Accord as a balancing factor. While the citizenship cut-off date for a migrant from Pakistan for the rest of the country was July 19, 1948 (before the amendment), for Assam it was set at March 24, 1971. Because of the additional migration, Clause 6 promised that ‘Constitutional, legislative and administrative safeguards, as may be appropriate shall be provided to protect, preserve and promote the culture, social, linguistic identity and heritage of the Assamese people.’
This protection is covered under Section 6A of the Citizenship Act, which created ‘special provisions as to citizenship of persons covered by the Assam Accord.’ The constitutional validity of Section 6A is under challenge before the Supreme Court.
It has not yet been defined who will be listed as the ‘Assamese people’. A widely held view is that it should cover those who could trace their ancestry in Assam back to at least 1951, excluding citizens who came during 1951-71. A committee set up by the Centre is yet to make recommendations on what form the special provisions would take — land rights, political rights, cultural preservation.
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