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December 26, 2019

CITIZENSHIP (AMENDMENT) ACT, 2019 – DEBUNKING THE MYTHS

Demonstrators shout slogans during a protest against the government's Citizenship Amendment Bill (CAB) in Guwahati on December 12, 2019. - Indian police fired blanks on December 12 as thousands of protesters ignored a curfew in the north-east of the country, in a fresh day of demonstrations against contentious new citizenship legislation. (Photo by Biju BORO / AFP) (Photo by BIJU BORO/AFP via Getty Images)

The Parliament of India’s Citizenship (Amendment) Act, 2019, amended the Citizenship Act 1955 to allow illegal migrants from Afghanistan, Bangladesh and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians and who entered India on or before 31 December 2014 to be eligible to obtain Indian citizenship. However, this bill does not include eligibility for Muslim migrants. Prior to this amendment, India did not consider religious affiliation to be a criterion for eligibility. The ambiguities and myths surrounding its provisions need to be put to rest to obtain a conclusive understanding of what this Act entails towards the status quo as well as the future of this nation.[1]
Framers of the act claim that the intent of this legislation is to ensure that the minorities facing religious persecution in Pakistan, Afghanistan and Bangladesh shall start off a new episode in their lives through a newly earned citizenship. However, the Act fails to include any persecuted Muslim minority communities under its ambit, raising concerns against this legislation for deviating from the basic structure doctrine laid down by the Kesavnanda Bharti[2] judgment. The Preamble has been accepted to be the part of our Basic Structure, and this Act goes against the virtue of Secularism treasured in the said Preamble of our Constitution. Therefore, if any legislation violates the Basic Structure, it stands unconstitutional.
The government has stated that the “reasonable classification” principle according to  Article 14 of the Constitution[3] to make a distinction with regards to the communities that have been included in the ambit of the act. If reliance is placed on the landmark judgment of Anwar Ali Sarkar[4] (in the words of Justice SR Das): “Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test  (i) the classification must be founded on an intelligible differentia which distinguished those that are grouped together from others, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act.” However, in this case, the criteria fall is not fulfilled in the Act since there is religious discrimination, where certain illegal migrants are not considered equal to the others. Thus, no rational justification exists. 
Furthermore, in response to the absence of Muslims in the statute, the government has been repeatedly argued that since the mentioned countries in the Act are Muslim majority countries, there is no presence of religious persecution of any Muslim minority communities. In contrast, the sad reality stands that Ahmadis, Shias, Sufis etc. have been frequent victims of religious persecution in Pakistan and Afghanistan.[5]  Furthermore, women and children from lower socio-economic backgrounds in these countries have also faced repeated persecution over history.[6] 
Further, the opposition has argued that the choice of countries being included in the Act is arbitrary. There has been no inclusion of Sri Lanka, Nepal, Myanmar or Bhutan [7] where there have been cases of minorities being persecuted repeatedly. In these countries, the victims have been Muslims and non-Muslims alike.[8]
Viewing the Legislation Alongside the Long Term Visa Scheme
To understand how this Act shall affect non-Muslim illegal migrants in a practical sense, it would be wise to look into how the Long Term Visa Scheme has been functioning in our country.[9] This scheme, introduced in the year 2011, grants long-term visas (LTVs) to “persecuted minorities” (read Hindus, Sikhs, Christians and Buddhists) of neighbouring countries, and gives those Aadhar Cards, driving licenses and property rights. A total of 14,726 Pakistani citizens were given LTVs between 2011 and 2014 after they submitted offline applications.[10] If this scheme is viewed in tandem with the Act – non-Muslim illegal migrants from Afghanistan, Pakistan and Bangladesh will be offered citizenship if they meet the criterion of being a victim of “religious persecution”. In light of this, as per the Intelligence Bureau of the Home Ministry, only a mere 31,313 people which include 25,447 Hindus, 5,807 Sikhs, 55 Christians, 2 Buddhists and 2 Parsis would be able to obtain citizenship through the Act.[11]
As per the statement provided by the bureau to the Joint Parliamentary Committee, a clear assertion was made on the fact that the amended legislation would only accept non-Muslim illegal migrants from the aforementioned three countries under its ambit provided that they have been a victim of “religious persecution”.[12] As such, along with the involvement of the foreign tribunals, the burden of proof would lie on the migrants themselves to prove that they have been victims. If the Long Term Visa Scheme is to now be replaced by the provisions of this Act, it is inferred that only a tiny number of migrants would actually be able to avail the ‘benefits’ as promised by the government.
Viewing the Legislation In Light of the North-East India
The Act, in its current form, grants citizenship to the non-Muslim migrants from Bangladesh, thereby legitimizing any illegal migration to India, which serves to the political interests of the ruling Government. Therefore, it can be inferred that the Act is destined to substantially alter the demographics of North-Eastern states which anyway face an existential threat to their indigenous culture and identity due to the rampant illegal influx of illegal migrants from Bangladesh.[13] Therefore, the provisions of this Act do not benefit to the tribal minorities in the north-eastern region.
On a side note, the Government has assured that the North-Eastern tribal areas would not be affected due to the exemption under Clause 4 of Section 6B present in the Act. This exemption states that “Nothing in this section shall apply to the tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873”. However, there is a caveat in the line of this argument as well. Although the areas under the Sixth Schedule and Inner Line Permit have been removed from the provisions of the Act, the influx of illegal migrants from Bangladesh still remains an imminent threat.[14]  Furthermore, this will anyway not discourage migrant Bangladeshi Hindus to move to a different region in the North-east, obtain citizenship, and return back to the exempted areas to live a normal life, and it would be easy to obtain permits to work or reside in these regions with ease.
Viewing the Legislation In Light of the National Register of Citizens (NRC)
When the NRC was first carried out in Assam, 19 lakh people were excluded out of the final list.[15] In addition to the disastrous chaos and the unsettling fear set in the minds of the masses, this extensive exercise also put up a massive cost of 1600 Crores to the exchequer.[16] Furthermore, in the recent CAG report, it was found that there were financial irregularities in the implementation of NRC in Assam.[17]
If a nationwide NRC is carried out, it is difficult to imagine the preposterous impact on the already dwindling economy and the hardships faced by the people in this process.[18] There have been numerous instances wherein several members of a family were included in the NRC whereas the rest were not, and this is a testament of the gross inaccuracies in the NRC. [19] Such an Act, which is inherently unconstitutional and regressive in nature, sets a flawed ideological and legal precedent for any future law.[20]
Now, if the case of Muslims is considered – following the NRC [21]  Assam, the BJP-led government is all set to conduct this nation-wide basis.[22] Reading CAA in light of NRC, a Muslim that fails to prove citizenship under the requirements of NRC would not get any immunity under the Act due to their direct exclusion, leading them to lose their citizenship in the process. [23]
 Conclusion
In light of the recent dissent-crushing events that have unfolded across the country, it is extremely crucial to understand the combined disastrous consequences of the CAA and the proposed pan-India NRC, which shall render any undocumented Muslim to fall outside the scope of ‘citizenship.’[24] Furthermore, detention camps are already being set up across the nation in order to further the agenda of the divisive and draconian law that ensures the creation of an environment of fear and spewing communal venom.[25]
Therefore, this Act presents a myriad of issues and debates that raise questions towards the Constitutionality, Secularism and Human Rights aspect that has been adhered to by the Government in the formulation of the same.[26] A rather secular approach towards this Act would have been omitting the mention of any religious and broadly including any religious minority that has faced persecution. This understanding would not go hand-in-hand with the Constitutional provisions as well as the international humanitarian obligations. [27]
The Supreme Court has accepted a petition to examine the Constitutional validity of the Act and shall hear the same on January 22, 2020. Also, it has refused to stay the operation of the Act).[28] Now, it is finally up to the Hon’ble Supreme Court, as the Custodian of the Constitution, to safeguard the democratic and constitutional setup of India.

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ABOUT THE AUTHOR(S)

Mustafa Rajkotwala is a second-year law student at NALSAR University of Law, Hyderabad with interests in Public Policy, Political Science and Constitutional Law.
Hrithwik Singh is a second-year law student at NALSAR University of Law, Hyderabad with interests in Public Policy, History and Constitutional Law.

 

 

 

 

In Content Picture Credit: The Week

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