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On the 12th of December, 2019, the Citizenship Amendment Bill, 2019 received the President’s assent and the Citizenship Act, 1955 stood amended to that effect. The said Act of the Parliament has received a lot of criticism for being against the constitutional morality of the State and discriminatory on the grounds of religion and nationality in the matters of citizenship. This amendment contains a few major points of change in the existing law which are listed below:
Insertion of a proviso to Section 2 of the Citizenship Act, changing the definition of illegal immigrants so as to not include people of the six non-Muslim religious communities, i.e., Hindus, Jains, Sikhs, Christians, Parsis and Buddhists (hereinafter ‘specified communities’) belonging to Afghanistan, Bangladesh or Pakistan (hereinafter ‘specified countries’) who came to India on or before the 31st of December, 2014.
Insertion of Section 6B, empowering the Central Government to provide citizenship to the above-mentioned category of people and not treat them as illegal migrants as has been defined in Section 2 of the parent Act.
Insertion of a provision in the Third Schedule of the Act under clause (d), changing the duration of the aggregate period of government service or residence (immediately preceding the period of 12 months) before application for naturalization from 11 years to 5 years.
AFTERMATH: PUBLIC OUTRAGE AND ITS BRUTAL SUPPRESSION
Immediately after the Amendment, several PILs were filed before the Supreme Court on the grounds of it being violative of Articles 14, 21 and 25 and against the standard of reasonableness as has been laid down by the SC. Large scale protests were held in several parts of the country on the 13th of December itself, including educational institutions such as the JMI, AMU, JNU, various IITs against the contentious legislation which was met with police brutality who resorted to the use of tear gas and batons against the demonstrators.
In response, Section 144 of the Code of Criminal Procedure, 1973 was imposed in many pockets of the country and internet access restricted in a number of states including Delhi, Uttar Pradesh, and Assam. Ironically, the same provision which was used by the British to oppress nationalist movements is now being brazenly used by Indian oppressors to curb peaceful and lawful demonstrations and for detaining scores of people thereby suppressing the voices of dissent. The nation has witnessed a blatant violation of even the most basic of human rights where the populace has arbitrarily been denied the right to expression and to peaceful assembly enshrined in the Constitution.
Amidst the bleak situation, the judiciary has stepped up to the task of rescuing the Constitution from unreasonable legislative action. For instance, Gauhati HC ordered the restoration of mobile internet services in Assam. The SC, recently, while deciding upon the Kashmir issue, noted that the use of the internet as a medium for free speech is protected under Art. 19(1)(a) of the Indian Constitution and any restriction on it would only be justified in order to combat an emergent situation. In the same judgement the Apex Court also observed that since orders passed u/s 144 CrPC have a direct impact on the fundamental rights of the public at large, it should be invoked and confined to a particular area or issues, which casts a shadow of doubt on the constitutionality of its prolonged and wide-ranging imposition in major parts of UP, Rajasthan, and Gujarat.
Upon a bare perusal of the law, there has been a very articulated criticism of the new citizenship law from various judicial activists, jurists and scholars alike. The blatant discrimination on religious lines is against the principles of secularism, fairness, and equality which are sewn into the fabric of the Constitution. Certain points of criticism have been listed below for a better understanding of the same:
The Statement of Objects and Reasons accompanying the amendment justifies the same by using the argument of how the mentioned non-Muslim communities face religious persecution in the three countries which have Islam as the state religion. Here, however, the Government has ignored the case of minorities within majorities, for instance, the Ahmadis (Pakistan and Bangladesh), Hazaras (Afghanistan) or the Rohingyas (settled in Bangladesh as refugees having escaped persecution in Myanmar) who would not be welcomed into the state and will not be given the benefit of citizenship. This exclusion of such minority Muslims is based on the ignorant assumption that in the “specified countries” they are not persecuted since they are Muslims. Hence persecuted Muslims, as well as Jews and atheists, stand excluded from any protection under the Act.
Another criticism of the legislation is that the government has set nationality criteria to be eligible to apply for citizenship. Hence, only the above-mentioned minorities from only the specified countries, facing persecution and escaping these countries are covered by this legislation. Here, the government has failed to take note that there are Hindus in these countries as well and by presenting such a picture of India as land not allowing refuge to Muslims could be used by these specified countries as a ground to further persecute the Hindu and other non-Muslim minorities.
Furthermore, the legislation arbitrarily sets the cut-off date for eligibility to apply for citizenship as 31st December 2014 thereby reducing the residence requirement to 5 years from 11 years, for such minorities facing persecution. This would entail that a person fleeing similar persecution from a country other than the specified countries, say, Sri Lanka would be eligible for citizenship only after residing in India for 11 years while such a similarly-placed individual fleeing from the neighbouring states of Afghanistan, Bangladesh or Pakistan would have to reside for just 5 years to seek citizenship under the Act. This stands in clear and blatant violation of the principles of equity enshrined in Article 14 of the Constitution.
Although the legislation nowhere expressly uses the term religious persecution but in effect, the benefit of citizenship would be available on the basis of the religious beliefs and faith of such an individual. Therefore, the act has completely denied protection to the individuals who face political, racial or gender-based persecution.
Lastly, India is not a party to the UN Convention relating refugees’ status. Therefore the focus of the Government should be at drafting a comprehensive and holistic policy to protect all refugees who have come to India rather than a selective citizenship policy, which is against the accepted principles of international law.
DIVISION AND DISPLACEMENT: GOVERNMENT’S ULTERIOR MOTIVES
Citizenship (Amendment) Act, 2019 is just the first step adopted by the government. However, it is not the final problem and it is the nationwide policy of NRC which would give effect to the policy of discrimination and displacement. The Citizenship Rules, 2003 provide for the preparation of a National Register of Indian Citizens and for the same a National Population Register (NPR) of all the people living in India. While the two policies were discussed by the UPA Government too, the current situation is different because of the communal CAA in effect. The improper implementation of NRC in Assam has led to the inclusion of various illegal immigrants in the list and exclusion of several legitimate citizens. Under the nationwide NRC, everyone would be required to present documents proving citizenship or face exclusion. Despite the exclusion, while the people of the ‘specified communities’ can apply for citizenship through naturalization, Muslims would not be entitled to the same protection. This practice of the government would further worsen the economic crisis. Looking at the current situation prevalent in the country regarding the unemployment crisis, the slow economic growth, the degradation of our democratic system, etc., the CAA can quite possibly be a diversionary tactic being employed by the government.
The issue of the CAA, as it stands, is sub-judice before the Supreme Court. However, the inefficiency of the judiciary on this matter is evident, which can be seen by the inordinate delays in hearing it and the court giving preference to other, less pressing issues, while the situation within the country and abroad becomes more precarious with the continuing protests and agitations.
On the 22nd of January, a 3-judge bench of the Apex Court not only failed to offer any relief but also refused to stay the matter until hearing a response from the Centre. Furthermore, even when the capital was placed under the National Security Act for three months, which empowers the police to even detain individuals protesting peacefully against CAA and NRC, whereby such individuals can be detained for up to 12 months, without any charge, the Supreme Court refused to interfere in this regard on grounds of it being a law and order issue.
Presently, the issue of the CAA has acquired its fair share of attention on the international stage and in the court of public opinion. Therefore, the Supreme Court is being expected to resolve this contention swiftly, once and for all.
ABOUT THE AUTHOR(S)
Rishabh Chhabaria is a 2nd-year law student at Rajiv Gandhi National University of Law (RGNUL), Punjab.
Abhigyan Tripathi is a 2nd-year law student at Rajiv Gandhi National University of Law (RGNUL), Punjab.