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Citizenship (Amendment) Act, 2019: Notes On Constitution, Citizenship and Discontent

Citizenship (Amendment) Act, 2019: Notes On Constitution, Citizenship and Discontent

                                                                            By Ishita Singh, Assistant Professor, Department of English, JMC

 

“Equality is the heart and essence of democracy, freedom, and justice, equality of opportunity in industry, in labor unions, schools and colleges, government, politics, and before the law. There must be no dual standards of justice, no dual rights, privileges, duties, or responsibilities of citizenship. No dual forms of freedom.” – A. Philip Randolph

Citizenship defines the political status of a person. It tells us whether certain persons are recognized by a particular country as its citizens. The citizenship of a person reveals which state do they owe their allegiance to and seeks entitlement to their protection. Citizenship to persons endows certain rights upon them such as the right to vote, the right to hold office, the right to contest elections, etc. and brings along with it some duties such as the duty to pay taxes, the duty to join the military, the duty to preserve the rich heritage of the country’s composite culture, etc. Non-citizens do not get these rights, nor are they expected to fulfil these duties towards the State. It becomes clear that citizenship forms as intrinsic a part of an individual’s personality as does the entire citizenry to its State. In the Indian context, citizenship becomes all the more important because the very existence of our country draws its life from “We, the people of India.”

 

The Citizenship Amendment Act, 2019 of India: An Introduction

On the 9th of December 2019, the Citizenship (Amendment) Act, 2019 was passed in the Lok Sabha or the House of the people, the lower house of India’s bicameral Parliament. On the 11th of December, 2019 the CAA was passed in the Rajya Sabha or the Council of States and on December 12, 2019 it received the assent of the President of India, Ram Nath Kovind

Since then, nationwide protests have been witnessed across university campuses and community spaces high on the rhetoric of secularism, the idea of India, the Preamble and citizens’ rights and duties. The protest symbols have varied from the National Flag, to the Constitution, to posters, memes and art created by young protestors of the digital age. The streets of cities and towns have overflowed with people coming out in protest despite several impositions of Section 144of the Code of Criminal Procedure, 1973 restricting public movement and police detentions. Most of these large crowds have often been headed and protected by women from police violence. 

In the last few weeks, there has been an assemblage of the various ideas, practices and articulation of who is a citizen, what it means to be a citizen and what is citizenship. This discursive space of citizenship is of course dominated by the Citizenship (Amendment) Act, 2019 (CAA), the National Registry of Citizens (NRC), and the looming threats of statelessness and detention centers. The dangers and the problems of the people, coupled with the CAA and NRC or the National Population Register (NPR) are in themselves aplenty and require deeper deliberation but in this article we will focus on the CAA alone, what it seeks to do, whether it should be opposed and why. 

 

Citizenship as per the Citizenship Act of 1955 and the new amendment:

Citizenship norms in India are regulated by the Citizenship Act, 1955 (hereinafter referred to as the Principal Act) that provides five provisions through which the citizenship of India may be acquired - by birth, by descent, by registration, by naturalization and by incorporation into territory of India

The Citizenship (Amendment) Act, 2019 introduces this contentious amendment to the Citizenship Act, 1955:

"Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act."

 

This makes religion and country of origin as the twin bases for determining the extension of citizenship claims to certain persons which is especially problematic because since January 26, 1950, when the Constitution came into effect, a factor for determining citizenship was already introduced and widely accepted despite the recent memory of partition and the division of people and their land on the basis of it, in 1947. Fear of or experience of religious persecution is the third factor to determine claims to citizenship. While it is not expressly mentioned in the 2019 Amendment, it is included via the amendments made by the Government in the Passport (Entry into India) Act, 1920 (Passport Act) and Foreigner’s Act, 1946 (Foreigner’s Act) in an Official Gazette notification on 7 September 2015 which exempted minority communities from Bangladesh and Pakistan; namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st of December 2014; from application of the relevant provisions of rules and orders made under the Passport Act and Foreigner’s Act, in respect of their entry and stay in India without valid documents or after the expiry of such documents. 

 

Older amendments in the Citizenship Act of 1955

The CAA 2019, however, exists in a historical continuum with two other significant amendments to the Principal Act, that of 1986 and 2003. The 1986 Amendment, in an attempt to resolve the “foreigner’s question”, namely the influx of Bangladeshis in India after the dissolution of East Pakistan, granted citizenship to those Bangladeshis who had entered Assam between 1 January 1966 and 24 March 1971 by implementing the Assam Accord drawn up in 1985. 

It is the 2003 amendments to the Principal Act that are pivotal to the debates today revolving around the NRC and CAA. In 2003, the then government, NDA, had introduced the category “illegal migrant”, i.e. a foreigner who has either entered India without a valid passport and travel documents or with them but has stayed back beyond the permitted period of time, to restrict citizenship by birth whereby citizenship by virtue of birth was limited to those born on or after the commencement of the act, whose both the parents are Indian citizens or one parent is an Indian citizen and the other one - not an illegal migrant. 

Therefore, an illegal migrant could not make claims to citizenship through naturalization. The 2003 Amendment also introduced a completely new Section 14A for the establishment of National Registration Authority and maintenance of a National Registry of Indian Citizens along with the issuing of national identity cards. This section vested in the Central Government powers to compulsorily register citizens. It is, therefore, in the 2003 Amendment that the contrarian link between citizenship and illegal migrant and the establishment of a nationwide NRC first unfolds.

This tendency emerging from the 2003 Amendment has taken the form of the CAA, 2019 by further delineating the concept of ‘illegal immigrant’ by exempting Hindus, Christians, Sikhs, Jains, Buddhists and Parsis from Pakistan, Bangladesh and Afghanistan who have entered India on or before the 31st of December 2014 from this category of persons. This specified class of persons, who no longer are to be considered illegal migrants, now qualify to make claims to citizenship through naturalization by way of the amendment to the Third Schedule of the Principal Act. 

 

Joint Committee Report on the Citizenship (Amendment) Bill, 2019

The Joint Committee (JC) on the Citizenship (Amendment) Bill, 2019 (CAB) headed by Shri. Rajendra Agrawal submitted its report on 7 January 2019. The committee made three study trips for testimony collection and discussion with the stakeholders at the local level; Jodhpur, 18-20 December, 2016; Ahmedabad and Rajkot, 18-20 April, 2017; and Guwahati, Silchar and Shillong, 7-11 May, 2018. The three field trips to Rajasthan, Gujarat, Assam and Meghalaya yielded contrarian findings.

While the former two were in favor of the Amendment, depositions collected from Assam and Meghalaya were completely opposed to it expressing shared anxiety for not only preservation of legacies of culture and its social fabric based on linguistic territoriality but also access to land, resources and livelihood. 

This paradox is further buttressed by the conditions of Assam Accord which the 2019 amendments further violate by introducing a new cut-off date. The Assam Accord granted citizenship to Bangladeshis who entered India on or before 24 March 1971 and the CAA 2019 shifts this date up to 31 December 2014. The Assam Accord and the 1986 Amendments to the Principal Act were a result of long-drawn out resistance movement in the 80s and is considered to be in the nature of “a public law contract” between the people of Assam and the Indian government, violation of which has led to the outrage of civil society groups visible today in public discourse. 

 

Discontent with the CAA:

The JC on CAB had also invited suggestions of 9000 stakeholders/experts, of whom several submitted a memorandum expressing that the CAA 2019 is in violation of various articles of the Constitution, especially Article 14. This view has also been shared by a Constitutional Expert on the Joint Committee and it is along the lines of this critique that we see the eruption of the students and civil society led protests in the mainland. 

The Constitution and the figure of Dr. B.R. Ambedkar have determined the optics of these protest sites often held high along with the tricolour. Memes and visual literature on the internet on the CAA 2019 with regard to India’s Constitution and Indian citizenship have been widely circulated on social media. Editorials in all major print and digital media platforms have discussed the constitutional validity of the CAA, 2019. More than sixty petitions challenging the amendments have been filed with the Supreme Court to be heard on January 22, 2020. 

 

Analysis of CAA, 2019 vis-à-vis Article 14 of the Constitution:

Article 14 of the Constitution of India reads as:

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

Article 14 therefore protects all persons, citizens and non-citizens within its territory, from discrimination and guarantees equal treatment of all persons before the law. The 2019 Amendments discriminate on the basis of religion by making it a factor that determines access to claims of citizenship; by excluding a religious community, namely, the Muslims, from being exempted from the category of ‘illegal migrants’ and therefore being denied access to claims of citizenship on the basis of religion. 

It is this unprecedented foregrounding of religion as a determining factor in claims to citizenship that has affronted civil society groups and individuals who have been protesting against this attack on the secularism of Indian Constitution, polity and its social fabric. The JC report, in anticipation to this charge of violating Article 14, defends the amendments by arguing that it creates a reasonable classification that bears a rational relationship with the objective of the law. 

There are two clear parts to Article 14- it commands the State to not deny any person ‘equality before the law’ and to not deny ‘equal protection of the laws’. It is the latter that needs to be further delineated to understand the context of the JC report’s defense of the amendments. While the first part of the Article 14 disallows unequal treatment to different classes of people, the second part, takes a more nuanced and sophisticated approach to equality. It advocates the idea of equal treatment in equal condition.The Supreme Court has delineated the meaning and scope of the Article 14 through various landmark cases. It has laid down a two-pronged test.

  1. Article 14 permits classification as long as it is reasonable and is founded upon an intelligible differentia. The CAA creates a classification based on religion, country of origin, date of entry into India and experience of religious persecution thereby meting out differential treatment to those already in the territory of India. While the SC is more likely to frown upon cases of over-inclusion than under-inclusion in the classification, it provides a provision that discrimination should not be a necessary consequence of the statute.
  2. This reasonable classification must have a rational nexus with the object that the statute seeks to achieve. The Statement of Object and Reasons (SoR) of the CAA, 2019, begins by declaring that “[i]t is 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.” It further expostulates that “The constitution 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.” Furthermore, it justifies the CAA 2019 “[u]nder the existing provisions of the Act, migrants from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Pakistan or Bangladesh who entered into India without valid travel documents or if the validity of their documents has expired are regarded as illegal migrants and ineligible to apply for Indian citizenship” and “[n]ow, it is proposed to make the said migrants eligible for Indian Citizenship.”
  3. Additionally, the classification and the objective should be non-arbitrary. In E.P. Royappa v. State of Tamil Nadu(1974), the SC expostulated this as: “Where an act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”
 

While the object of the statute and the classification share a rational nexus with each other, it is on the other counts that the CAA 2019 fails. 

To begin with, the objective of the statute itself is arbitrary. It is unclear why it privileges one kind of persecution over another. Even though, India is not a signatory to the United Nations convention on the status of refugees and stateless persons and the 1967 protocol which proscribes discrimination of refugees on the basis of race, gender etc. and accepts all forms of persecutions, the CAA, by privileging the experience of religious persecution in granting access to Indian citizenship, is a discriminatory and arbitrary law. There are more than 100,000 Sri Lankan Tamils currently living in India of which 60,000 reside in 100 plus refugee camps in Tamil Nadu alone. These Sri Lankan Tamils have been persecuted since the early 1980s through the long years of the Tamil-Sinhala conflict. More than 1.6 lakh Tamil Hindus have lost their lives in this conflict. Those that fled from persecution in Sri Lanka entered India before 31st December 2014. Even if the objective is to protect those who have suffered from religious persecution, the CAA does not provide safeguards for Ahmadiya Muslims from Pakistan or Rohingya Muslims from Myanmar. More than 1.5 lakh Ahmadis live in India, most residing at Qadian, a small township in Gurdaspur, Punjab. 

 

On September 7, 1974, the then Pakistani Prime Minister, Zulfikar Bhutto, introduced an amendment to the Constitution that proclaimed the Ahmadis to be non-Muslims. 1984 onwards they were prohibited from proselytizing and even professing their beliefs. And since, 1985, most Ahmadis have not voted in election because of the clause that they can only claim voting rights in the Non-Muslim category. Vandalism of their places of worship, accusations of blasphemy along with a prohibition of reading the Quran has forced the Ahmadis to take refuge in other countries. Deprivation of political rights due to religious affiliation, coercion to live like second-class citizens, assimilate or leave are internationally accepted experiences of religious persecution and to challenge the claims of religious persecution of Ahmadis in Pakistan is a matter of grave injustice to the community. Similarly, persecution of Rohingya Muslims in Myanmar is due to their religious and ethnic identity. The JC report also records the claim of India being the spiritual homeland of Hindus and thereby prioritizing their claims to citizenship. Even if one were to accept that as a valid claim, the exclusion of Tamil Hindus, is arbitrary. Ironically, Qadian is also the home of the Ahamdiyya movement and a sacred place of worship, making India a spiritual homeland for the Ahmadis too. 

According to the JC Report, a constitutional expert had advised the removal of reference to particular communities and instead replace it with “persecuted communities”- a suggestion which the Legislative Department rejected stating that the use of “persecuted minorities” has a “wider scope of interpretation” which would “negate the objectives of the Bill as it may be construed to include other communities (religious or otherwise)”. With the Mulisms from Pakistan, Bangladesh and Afghanistan being the only community excluded from those exempted from the category of “illegal migrants”, the object of the Act is to exclude Muslims from making claims to citizenship. 

Second, if the law is based on humanitarian grounds of extending citizenship to those who have suffered religious persecution in Islamic countries, then the cut-off date is completely arbitrary. It does not create an intelligible differentia between those who entered India before 31st December 2014 and those who entered after. The Union Government has assured that this is a one-time amnesty to the “illegal migrants” to prevent further influx into India. The CAA 2019 makes no provisions or commitments towards protection of religious minorities in a consistent way either. 

Third, the Statement of Reasons (SoR) justifies the inclusion of the three countries because their constitutions provide for a “specific state religion”. Apart from Pakistan, Afghanistan and Bangladesh, Bhutan and Sri Lanka, which have Buddhism as their state religion, have a history of religious persecution. Reasons for exclusion of these countries, too, is unclear. If the object is tied to righting the wrongs of the partition of undivided India, then the inclusion of Afghanistan again is arbitrary. 

When asked to defend the inclusion of Afghanistan in the list of countries, the Ministry of Home Affairs (MHA) stated, “There have been multiple attacks against Indian interests in Afghanistan by the Pakistan establishment sponsored LET, Haqqani Network and Taliban. Besides, minority communities in Afghanistan had migrated to Afghanistan from Pakistan region during pre-independence India. They are facing continuous atrocities due to their Indian origin.” This statement further obfuscates the argument without clarifying the inclusion of Afghanistan. The MHA elaborates, "A number of persons belonging to minority communities in Afghanistan have also come to India on account of religious persecution or fear of religious persecution. Hence, it was decided to include Afghanistan within the ambit of the Notification issued on the 7 September, 2015 by issuing two more Notifications on the 18 July, 2016". This statement again is not only arbitrary but also tautological and could hold true for all “illegal migrants” in India. The CAA therefore fails to create an intelligible differentia between the class that benefits from it and the class that does not unless the objective is to create the Muslim perpetrator and Non-Muslim victim binary. 

 

Nehru-Liaquat Pact, 1950 vis-à-vis CAA, 2019

Home Minister Amit Shah, while presenting the Bill in the Parliament, referred to the failure of the Nehru-Liaquat Pact to protect religious minorities in Pakistan and Bangladesh to justify the new legislation. The Nehru-Liaquat Pact is a bilateral treaty signed by Liaquat Ali Khan, then Prime Minister of Pakistan and Jawaharlal Nehru, the then Prime Minister of India on 8 April 1950 agreeing to protect the minorities within its respective territories, ensuring “complete equality of citizenship, irrespective of religion”. After the Partition of 1947, mass exodus of population across the Bengal border was kept in check via the Neogy-Ghulam Mohammad Agreement signed in 1948. Regardless, when communal violence and rioting began in East and West Bengal in early 1950, Bengali Hindus in large numbers fled from East Bengal (now Bangladesh) seeking shelter and protection in India. This rioting and subsequent migration led to the signing of the Nehru-Liaquat Pact primarily to protect minorities in East Bengal. The pact came under harsh criticism for its ineffectuality from the Hindu Mahasabha. Thereafter, SP Mookerjee and KC Neogy resigned from Nehru’s cabinet. From the very beginning, the policy of the Nehru Government had not been on the rehabilitation of the East Bengali Hindus but on discouraging them from migrating, as it was preoccupied in the task of rehabilitating refugees fleeing communal violence and massacre in Punjab. 

The Nehru-Liaquat Pact was a failure given that East Bengali Hindus continued to flee from persecution in East Pakistan. Dhaka-based economist estimates that around 11.3 million Hindus have left Bangladesh between 1964 and 2013. The CAA 2019, which is being presented otherwise, could not and should not be seen as remedying the faults of the Nehru-Liaquat Pact. In the JC Report, the Director of Intelligence Bureau deposed that a total of 31,313 persons have been given Long Term Visas on the basis of their claim of religious persecution in their respective countries who will be the immediate beneficiaries. He further states that for others to apply for Indian Citizenship under this category, they will have to “prove they came to India due to religious persecution” and if they have not declared it at the time of their arrival in India “it will be difficult for them to prove such a claim now”. As the JC Report itself explains, most of these 31,313 persons who will benefit from the CAA 2019 are migrants from Pakistan. The CAA 2019 does not, therefore, in any way give protection to the Bengali Hindus it uses to justify the amendment. Much of the actual process of making claims to citizenship by migrants remains opaque, often in the hands of local bureaucrats, even as the fear of Detention Centers looms large. 

The CAA 2019 it seems is an exercise of byzantine proportions to protect only “a small number” of migrants. The 2020 Budget allocates Rs. 4,568 crores under the Census, Survey & Statistics and various schemes of Registrar General of India, including National Population Register (NPR), linked directly to the NRC and the CAA 2019. Meanwhile, the budgetary allocation for Relief and Rehabilitation for migrants and repatriates has been slashed three times-from Rs. 792.36 crores in 2019-20 to Rs. 205.83 crores in Budget 2020. This covers rehabilitation of refugees from Sri Lanka; expenditure on refugees from Tibet and former East Pakistan; relief and rehabilitation assistance to North Eastern States of Tripura, Assam and Mizoram; compensation to 1984 riot victims, and the land boundary agreement between India and Bangladesh. The CAA 2019 therefore should not be mistaken to be a humanitarian law for refugees in India. 

 

Discrimination on grounds of religion is a necessary consequence of CAA, 2019: Conclusion

In conclusion, the CAA 2019 indeed charts out a new and terrifying territory onto the landscape of Indian citizenship and without a doubt this new territory looks a lot like the fabled Hindu Rashtra, a Hindutva utopia. The JC report, however, couches its right-wing ideology in the vocabulary of liberal democracies to justify its new citizenship model as based on benevolence and solidarity. Discrimination on grounds of religion is a necessary consequence of the statute as it creates unequal conditions for persons who are in a similar situations within the territory of India. The CAA unequivocally violates the “basic structure” of the Indian Constitution and of “Constitutional Morality”. It needs to be vehemently opposed, in itself, lest it completely mangle future contexts of citizenship. 

 

 

Disclaimer: The views, thoughts and opinions expressed in the text belong solely to the author and do not reflect the opinion of LawStreet Journal.

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