The Citizenship (Amendment) Bill, 2019.What does it do and why is it seen as a problem and the constitutional question

The Minister of Home Affairs introduced the Citizenship (Amendment) Bill, 2019 December in Lok Sabha. It is scheduled to be taken up for discussion and passing by the House The Bill amends the Citizenship Act, 1955, and seeks to make foreign illegal migrants of certain religious communities coming from Afghanistan, Bangladesh, and Pakistan eligible for Indian citizenship. In this blog, we look at the criteria for determining citizenship in India, discuss how the Bill proposes to change the criteria, and highlight other key changes proposed by the Bill. How is citizenship acquired in India?

In India, citizenship is regulated by the Citizenship Act, 1955. The Act specifies that citizenship may be acquired in India through five methods – by birth in India, by descent, through registration, by naturalisation (extended residence in India), and by incorporation of territory into India. Can illegal migrants acquire citizenship?

An illegal migrant is prohibited from acquiring Indian citizenship. An illegal immigrant is a foreigner who either enters India illegally, i.e., without valid travel documents, like a visa and passport, or enters India legally, but stays beyond the time period permitted in their travel documents. An illegal migrant can be prosecuted in India, and deported or imprisoned. In September 2015 and July 2016, the central government exempted certain groups of illegal migrants from being imprisoned or deported. [2] These are illegal migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities. How does the Bill seek to change the criteria for determining citizenship?

The Bill proposes that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship. On acquiring citizenship, such migrants shall be deemed to be Indian citizens from the date of their entry into India and all legal proceedings regarding their status as illegal migrants or their citizenship will be closed. The Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years. Are the provisions of the Bill applicable across the country?

The Bill clarifies that the proposed amendments on citizenship to the specified class of illegal migrants will not apply to certain areas. These are: (i) the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and (ii) the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873. These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District. Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland. Is the differentiation among the specified class of illegal migrants and all other illegal migrants reasonable?

The Bill makes only certain illegal migrants eligible for citizenship. These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states. This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the Bill, and may continue to be prosecuted as illegal migrants. Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so. [3] The Bill provides differential treatment to illegal migrants on the basis of (a) their country of origin, (b) religion, (c) date of entry into India, and (d) place of residence in India. The question is whether these factors serve a reasonable purpose to justify the differential treatment. We examine this below.

The Bill classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh. While the Statement of Objects and Reasons (SoR) in the Bill reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, no reason has been provided to explain the inclusion of Afghanistan. The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups. However, there are other countries which may fit this qualification. For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion) [4] and Myanmar (primacy to Buddhism) [5], have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively. [6], [7], [8] Further, there are other religious minorities from Pakistan, Afghanistan and Bangladesh, such as the Ahmadiyya Muslims in Pakistan (considered non-Muslims in that country) [9], and atheists in Bangladesh [10] who have faced religious persecution and may have illegally migrated to India. Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to other neighbouring countries, or belonging to religious minorities from these three specified countries, have been excluded from the Bill.

The Bill also creates further differentiation between the specified class of illegal migrants based on when they entered India (before or after December 31, 2014), and where they live in India (provisions not applicable to Sixth Schedule and Inner Line Permit areas). However, the reasons provided to explain the distinction is unclear. Note that certain restrictions apply to persons (both citizens and foreigners) in the Sixth Schedule areas and in the states regulated by the Inner Line Permit. Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are applicable to other Indian citizens. Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas. How does the Bill change the regulations for Overseas Citizens of India?

The Bill also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here. At present, the government may cancel a person’s OCI registration on various grounds specified in the Act. In case of a cancellation, an OCI residing in India may be required to leave the country. The Bill adds another ground for cancelling OCI registration — violation of any law notified by the central government. However, the Bill does not provide any guidance on the nature of laws which the central government may notify. The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers. [11] Therefore, the powers given to the government under the Bill may go beyond the permissible limits of valid delegation.

The Citizenship (Amendment) Act 2019 has triggered widespread protests across India. The Act seeks to amend the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, who have lived in India without documentation. They will be granted fast track Indian citizenship in six years. So far 12 years of residence has been the standard eligibility requirement for naturalisation. The anger over the CAA led to street protests, first in Assam that later spread to Delhi and other parts of the country. At the first hearing on petitions challenging the CAA, the Supreme Court declined to stay the contentious law but asked the Centre to file its reply against the petitions that say it violates the Constitution. The petitioners say the Bill discriminates against Muslims and violates the right to equality enshrined in the Constitution. Here's a primer on why some believe it questions the idea of India Who makes the cut?

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. The cut-off date for citizenship is December 31, 2014 which means the applicant should have entered India on or before that date. Indian citizenship, under present law, is given either to those born in India or if they have resided in the country for a minimum of 11 years. The Bill also proposes to incorporate a sub-section (d) to Section 7, providing for cancellation of Overseas Citizen of India (OCI) registration where the OCI card-holder has violated any provision of the Citizenship Act or any other law in force. What is Centre's logic behind the bill? Centre says these minority groups have come escaping persecution in Muslim-majority nations. However, the logic is not consistent – the bill does not protect all religious minorities, nor does it apply to all neighbours. The Ahmedia Muslim sect and even Shias face discrimination in Pakistan. Rohingya Muslims and Hindus face persecution in neighbouring Burma, and Hindu and Christian Tamils in neighbouring Sri Lanka. The government responds that Muslims can seek refuge in Islamic nations, but has not answered the other questions.

Some say it is like Partition, is that true? Amit Shah says that the Bill would not have been necessary if the Congress did not agree to Partition on the basis of religion. However, India was not created on the basis of religion, Pakistan was. Only the Muslim League and the Hindu Right advocated the two nation theory of Hindu and Muslim nations, which led to Partition. All the founders of India were committed to a secular state, where all citizens irrespective of religion enjoyed full membership. Either way, this logic for the CAB also collapses because Afghanistan was not part of pre-Partition India. ntention to discriminate against Muslims and violation of Article 14 of the Constitution are the two major criticisms that the Narendra Modi government faces over the Citizenship Amendment Bill that aims to recognise non-Muslim migrants from Bangladesh, Pakistan and Afghanistan who are treated as illegal immigrants under the existing laws.

Intention of discrimination is a subjective perception. The BJP has always faced the charge that it discriminates against Muslims. The party has thrived with this perception but has always insisted, at least officially, that it follows Hindutva with non-appeasement and without discrimination against Muslims or other minorities. The major challenge to the Citizenship Amendment Bill is passing the Article 14 test. Article 14 of the Constitution is one touchstone that does not allow discrimination within one class of persons. That is, though a convict cannot claim the same rights as an innocent civilian but a particular class of people such as those belonging to Scheduled Caste can be given certain privileges over other castes on account of having faced historical social backwardness but there can be no discrimination within the caste-group. WHAT CITIZENSHIP AMENDMENT BILL SAYS The Citizenship Amendment Bill lists six religious minority groups Hindus, Sikhs, Jains, Buddhists, Parsis and Christians of Bangladesh, Pakistan and Afghanistan for granting them eligibility to apply for Indian citizenship if they have lived in the country for six years. The Citizenship Amendment Bill leaves out Muslim immigrants who entered India the same way as non-Muslims. Both are illegal immigrants and hence qualify for equality before law and equal protection of law under Article 14 of the Constitution.

However, presenting the Citizenship Amendment Bill, Union Home Minister Amit Shah said the legislation satisfies all conditions mentioned in Article 14 and does not violate any provision of the Constitution. The bedrock of this argument, and hence confidence of Amit Shah, lies in the statement of objects and r.easons of the Citizenship Amendment Bill. The statement of objects and reasons offer the boundaries for legal explanations and interpretations of a law if and when it faces judicial scrutiny. Given the vociferous opposition by the Opposition parties and activists, the Citizenship Amendment Bill is likely to be challenged in courts. TOUCHSTONE TEST FOR CAB The defence of the Citizenship Amendment Bill rests on three main arguments: The parent countries of the illegal immigrants have a state religion The illegal immigrants to be benefited were persecuted for their religious belief Article 14 allows a classification that is founded on an intelligible differentia provided differentia has a direct nexus to the object sought to be achieved by the statute in question. This simply means a separate class of people can be created (non-Muslim immigrants in this case) by an enabling law. The statement of objects and reasons of the Citizenship Amendment Bill mentions: A historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947.

This means the law recognises the presence of illegal immigrants from the three countries Bangladesh, Pakistan and Afghanistan in India. Now the question arises how to deal with them. The existing laws provide for identifying and deporting all illegal immigrants. There is no law in India that identifies illegal immigrants as refugees. Identification of refugee, granting refugee status to immigrants and offering them asylum are done on case-by-case basis in India by the government of the day. The Tibetans and the Sri Lankan Tamils were recognised as refugees in the same manner. The identification and deportation of illegal immigrants presents a humanitarian problem before the government. One of the problems is the possibility of religious prosecution of a group of illegal immigrants. The Citizenship Amendment Bill addresses that limited concern of the illegal immigrants. IN DEFENCE OF CITIZENSHIP AMENDMENT BILL In the statement of objects and reasons, the Bill says, The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. This means the Citizenship Amendment Bill prepares the ground that the fear of religious persecution exists only for those who do not profess a religion as adopted by the countries as their state religion. In this case, all three countries declare Islam as their state religion. This statement forms the basis of intelligible differentia for non-Muslim immigrants and creates the legal and constitutional basis for leaving out Muslim immigrants who entered India or stayed in India without valid documents. However, it would be difficult to prove who among the illegal immigrants entered India out of religious persecution or for the lure of better economy. The government cannot conduct investigation into a few million cases in some other country to verify the claim of religious persecution. The government may easily deny the claim of religious persecution of a Muslim immigrant but how will it differentiate between those coming for the lure of economy and those forced to flee for professing belief other than that of the State? These questions will require answer if and when the Citizenship Amendment Bill comes up for constitutionality test in the courts. The amendment has been widely criticised as discriminating on the basis of religion. The Office of the United Nations High Commissioner for Human Rights called it "fundamentally discriminatory", adding that while India's "goal of protecting persecuted groups is welcome", this should be done through a non-discriminatory "robust national asylum system".[10][11][12] Critics express concerns that the bill would be used, along with the National Register of Citizens, to render 1.9 million Muslim immigrants stateless.[13] Commentators also question the exclusion of persecuted religious minorities from other regions such as Tibet, Sri Lanka and Myanmar.[13][14] The Indian government says that Pakistan, Afghanistan and Bangladesh are "Muslim-majority countries" where Islam has been declared as the official state religion through constitutional amendments in recent decades, and therefore Muslims in these Islamic countries are "unlikely to face religious persecution" and cannot be "treated as persecuted minorities".[15][16][17] Other scholars state that widespread religious persecution of minorities such as Hindus, Sikhs and Christians has been a serious problem in Pakistan.[18][19][20] The passage of the legislation caused large scale protests in India.[21] Assam and other northeastern states have seen violent demonstrations against the bill over fears of non-Muslim illegal immigrants being naturalized under these provisions, thus impacting the local culture and society.[22][23][24][25] Universities across the country saw huge protests by students and the police were subsequently accused of resorting to brutal suppression.[26] As of 12 December, the protests had resulted in more than a thousand arrests and six deaths; civil liberties and communication facilities were frequently suspended by the police in response