Analysis: Citizenship Amendment Bill, 2019

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“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, LIBERTY and EQUALITY of status and of opportunity; Hereby Adopt, Enact and Give to Ourselves This Constitution”

Preamble of the Indian Constitution

The Citizenship Amendment Bill, 2019 was recently passed by the Rajya Sabha after enjoying a huge majority in the Lok Sabha on Monday. The bill will amend the Citizenship Act of 1955 to dilute the time requirements of the naturalisation process for non-Muslim immigrants from Bangladesh, Pakistan and Afghanistan.

Salient features of the bill

The bill proposes to amend the third schedule of the Citizenship Act of 1955 to grant fast-track citizenship to illegal immigrants who are Hindu, Sikhs, Buddhists, Jains, Parsis and Christians from Bangladesh, Pakistan and Afghanistan.

Under the new amendment, they will be eligible for citizenship by naturalization if they are able to establish their residency in India for five years as opposed to the requirement of establishing residency of eleven years or more under the original act of 1955.

Under the 1955 act, the requirements for citizenship by naturalization state that the applicant must have resided in India during the last twelve months, and for at least eleven years of the previous 14 years. This requirement has now been circumcised to five years for immigrants belonging to the aforementioned six religions from the three countries.

However, certain areas are excluded from the application of the act. These are the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, mentioned under the Sixth Schedule to the Indian Constitution. The areas regulated through the Inner Line Permit (ILP) including Arunachal Pradesh, Mizoram and Nagaland are also exempted from the applicability.

Inner Line permit is a system to protect the economic interests of the indigenous communities of Arunachal Pradesh, Nagaland and Mizoram. Any outsider, even if an Indian citizen needs an inner line permit to enter these areas. (Manipur was brought under ILP recently).

Justification of the bill

The NDA government first and foremost claims that the bill is a reprieve to the persecuted non-muslim minority groups who migrate to India from muslim majority countries – Bangladesh, Pakistan and Afghanistan. They aren’t treated equally, live off a minimal bare existence and therefore their naturalization process needs to be accelerated.

They claim that millions of people of various faiths and religions of undivided India were staying in the areas which constitute the above-mentioned countries today but when the partition took place on the basis of religion, many non-muslim minorities living in these areas faced religious persecution, these areas being declared as muslim majoritarian countries.

There rights to practice, profess and propagate the religion of their choice was obstructed. To escape this, many of them fled to India to seek a safe haven even with expired or incomplete travel documentation. These migrants, without valid or expired travel documents are currently regarded as illegal migrants and are ineligible to apply for Indian citizenship under section 5 or section 6 of the 1955 Act.

However, the said migrants (who entered into India up to the cut of date of 31.12.2014) shall now be considered for Indian citizenship by naturalization subject to proper conditions and restrictions under the amended citizenship act on humanitarian grounds.

Secondly, in the recent National Register of Citizens (NRC) exercise in Assam, lakhs of Hindus were left without citizenship due to faulty paperwork which also necessitated the introduction of the bill.

Controversy

The bill has been controversial due to the exclusion of Muslim migrants from the benefits conferred under it. The opposers of the bill allege that it undermines the constitutional principle of India being a secular nation by preferentially granting fast-track citizenship to only non-muslim migrants from Bangladesh, Pakistan and Afghanistan.

It is being hailed violative of Article 14, 15 and 21 of the constitution viz the right to equality, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and right to liberty.

There has been a particularly stiff resistance in the north-east. The cut-off date for regularising migrants is set by the proposed amendment as December 31, 2014 which directly contradicts the Assam accord of 1985 that set March 24, 1971 as the cut-off date.

In these parts, the people fear that the act will lead to lakhs of Hindus from neighbouring counties, especially Bangladesh will come to these regions, looking for Indian citizenship but such influx would harm the indigenous communities, burdening the already scarce resources and threatening their language, culture and tradition.

Critical analysis

First of all, the government’s claim that the partition of undivided India into India and Pakistan was religiously motivated is misleading. Pakistan was formed on the basis of Mohamad Ali Jinnah demanding a separate nation for Muslims but India was to always remain secular and open to people of all religions.

There is no doubt that the religious minorities in the neighbouring countries have faced persecution throughout the years. However, the claim that only non-muslim minorities face persecution in these non-secular muslim majoritarian countries is misconstrued.

There have been track record of muslim fundamentalists in these countries persecuting muslim minorities too be it Ahmadian and Shia Muslims of Pakistan or Rohingya Muslims of Myanmar. The bill is trying to isolate these minorities on an assumption that they are a welcome lot in these muslim majoritarian countries which is far from reality.

While the government promises to examine applications under the amended citizenship bill, on case to case basis, the exercise of NRC in Assam which left lakhs of legitimate Hindus out of the citizenship registers due to improper execution speaks for the ineffectiveness of government in handling individual cases of such extent.

Further, the current government is committed to carry out a nationwide NRC in order to identify and list Indian citizens and expel illegal migrants. Now, the people who are unable to produce satisfactory documentation will be expelled out of the NRC might be accepted as immigrants and may be given a fast-track citizenship under the proposed bill but people falling outside these the six religions might be rendered stateless as they are not protected under the proposed bill.

Also, Article 380 was recently revoked in muslim majoritarian populated Kashmir and the upcoming Citizenship Amendment Bill has the possibility of further shaking the already disturbed the social, political and economic equilibrium of the area.

Conclusion

The bill is largely hailed as an instrument legalising religious discrimination. It stands against the constitutional values of secularism by giving preferential treatment by extending fast-track Indian citizenship to specific categories of illegal migrant on the basis of religion, effectively rendering Muslims are second-class citizens, falling foul of secularist tendency of the Indian democracy in a classic act of narrow-minded exclusion on basis of religion.

These values constitute the basic structure of the constitution and cannot be altered by the parliament. While it cannot be denied that the non-muslim migrant minority will benefit from the bill and it will be a new dawn to lakhs of non-muslim migrants, it will also be the dusk for the muslim migrants in India and to the values of secularism that Indian once swore by.

Author: Oshin Malpani from Nalsar University of Law, Hyderabad.

Editor: Tamanna Gupta from RGNUL, Patiala.

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