CONUNDRUM OF THE CITIZENSHIP ACT, 2019

Abstract

The Citizenship Amendment Act, 2019 which was passed as a bill by obtaining majority from the houses of the parliament on 11^th December, 2019. The President of India, Ramnath Kovind gave assent on 12^th December, 2019. The bill attained the status of the Act and came into effect on 20^th January, 2020. Immigration craves the picture of modern world. Migrating from one country from the other country has been in the mainstream from a very long time. Hindus, Sikhs, Buddhists, Christians, Jains, and Parsis from Afghanistan, who entered India on or before the mentioned cut-off date 31st December 2014 are granted citizenship under the Act. The Act seeks to relax the requirement of residence in India for citizenship naturalization from 11 years to 5 years for these migrants. The recently passed Act has been in headlines for a public debate that turns controversial without entering into legal, moral and civilization issues that has to be addressed. The Act isn’t either a Hindu- Muslim communal divide or is about denying citizenship based on the religion of people. The Act poses a severe threat to the society and it acts against the basic structure of the Indian Constitution. It is also interlinked with National Register of Citizenship (NRC) process in Assam.

This Article deals with the history behind the Act, the features of the Act, Constitutional validity of the Act, the Act and the NRC and how the Act affects people in the North East.

History behind the Act

After Independence, India was partitioned and Pakistan was carved out on its eastern and western fronts. There was an outbreak of communal riots across the borders of the countries because of religious persecution. Pakistan being an Islamic state had a brutal policy practice and most religious minorities were ill- treated. Many crimes and monstrous oppression of civil, political and economic rights was very casual. The Indian National Congress (INC) passed a resolution on 25^th November 1947 when the situation in the borders became worse. The resolution has guaranteed that ” The INC is bound to protect all non-Muslims, who have come over, crossing the borders or may do so, to save their lives and honor in the future; these people will be protected and given full citizenship in future”.

On 8^th April 1950, the Nehru- Liaquat Pact was signed by the Prime Ministers of India and Pakistan. It was known to be the Agreement between the Government of India and Pakistan regarding security and rights for minorities. The refugees were given permission to return unmolested to dispose of their belongings, abducted women and looted goods were to be returned, forced conversions were to be unrecognized, and minority rights were to be guaranteed under the agreement. Almost 1.5 crore refugees had moved to India and majority of the refugees were Hindus from East (Present- day Bangladesh) and West Pakistan^[1].

Features of the Act

Under the Citizenship Act, 1950, an illegal migrant will not be eligible to apply for acquiring citizenship. They are not allowed to become citizens of the country through registration or naturalization and the Foreigners Act and the Passport Act does not allow an illegal migrant and puts the person in jail or deportation. Section 5(a) of the Citizenship Act states that a person of India’s origin who is ordinarily resident in India for seven years before making an application for registration and the person should have lived in India continuously for 12 months before submitting an application for citizenship. Under the Act, Citizenship by naturalization is, the applicant must have lived in India for the last 12 months as well as 11 of the previous 14 years[2].

The Citizenship Amendment Act, 2019 intends to form changes in the Citizenship Act, the Passport Act and the Foreigners Act for the illegal migrants who belong to religious minorities from Bangladesh, Afghanistan and Pakistan. The Citizenship Amendment Act, 2019, grants the illegal Non- Muslim migrants the status of legal migrants. Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan are now eligible for citizenship in India, according to recent revisions. This applies to persons who have been “forced to seek asylum in India due to religious persecution”. The requirement of naturalization was changed from 11 years to 5 years as a specific condition for applicants who belong to those religion. The person who applies should have entered India on or before 31^st December 2014. When the person acquires citizenship, they are deemed to be citizens of India from the date of their entry and legal proceedings that are against them with respect to illegal migration will be closed.

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The provisions on citizenship for illegal migrants would not apply to the Tribal Areas of Assam, Meghalaya, Mizoram, and Tripura, according to the Act’s exceptions and will not apply to the areas under the Inner Line Permit under the Bengal Eastern Frontier Regulation, 1873[3].

Constitutional Validity of the Act

After the Act was enacted, there has been a lot of arguments and debates regarding the validity of the Citizenship Act. The act is criticized because it targets Muslims. The religious basis of the act violates secularism, liberalism, equality and justice. The Act does not allow Shia, Balochi and Ahmadiyya Muslims in Pakistan and Hazaras Muslims in Afghanistanand Atheists of Bangladesh who are born in Muslim families. These Muslims face religious persecution and are not allowed to apply for citizenship. If an immigrant enters India illegally from these countries, he will not receive any protection from India. But, if these Muslims enter India with valid travel documents they can receive citizenship through naturalization. If a Shia Muslim faces religious persecution and enters India for shelter and if he wishes to stay in India as a refugee, it will be considered only by the merits and circumstances^[4].

The second point of contention is whether or not the Act is in violation of Article 14 of the Constitution. Article 14 stipulates that the state shall not deny equality before the law to any individual inside India’s territory. This implies that all immigrants should receive the same treatment. Any legislation must meet two requirements: 1) the classification must be based on intelligible differentia, and 2) the differentia must have reasonable linkage. This means that everyone should be able to grasp the classification, and the provision should be logical and well-founded. However, the contested act is unique among equals in that it excludes a small number of tribes. Any classification should not be arbitrary. In Maneka Gandhi v. Union of India^{^[5]}, it was held that no law can be arbitrary. But, the Act allows citizenship on the basis of religion and arbitrarily leaving Muslims and is going against the essence of constitution^[6].

But there is a valid classification why the CAA does not violate Article 14. Article 14 permits “reasonable classification”. There are two valid classifications in this case. The first classification is that the three countries under the CAA are either Islamic states or countries where there is Muslim domination. The second classification is that the minorities in the 3 countries have faced religious persecution.

The next fundamental question is whether the Citizenship Amendment Act, 2019 violates Art 15 and Art 21 of the Indian Constitution. In Gazula Dasaratha Rama Rao v. State of AP^{^[7]}, the Supreme Court held that, Article 15 prohibits discrimination on the grounds of sex, religion, race, caste, place of birth or any of them but it is available only for the citizens of the country. Thus, the plea that Article 15 violated by the Act will not be applicable as the Amendment deals only with the people who are not the citizens of the country^[8]. Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. But, the Act does not deprive any person of his life or his liberty. Identified persons who satisfy the criteria will get their citizenship status.

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CAA and NRC

The National Register of Citizens (NRC) that was conducted in Assam had its limitations. The Government has implied many times that it will implement NRC in the whole of India. This means that every person in the country must prove that they are citizens of the country. But, the government has not given any information on how it would be conducted and what are the necessary documents that a person should bring with him to prove his citizenship. If a situation like that occurs, many people will be affected especially poor, unemployed and illiterate people. People who do not have the required documents would be affected as it will be hard to reclaim their citizenship. However, the Act will protect the people who are from other countries and those who belong to a different religion other than Muslim. According to the law, when pan- India NRC is implemented and people who cannot prove their citizenship will be immigrants. If the immigrants are Hindu, Sikh, Jain Parsi, Buddhist or Christian, they will be rescued by the CAA because any immigrant who belongs to these religions will get citizenship. But, Indian Muslims who are poor or who do not have proper documents will not be saved and they would be put in detention or they would be deported. If the CAA is implemented with the NRC, a lot of helpless Indian Muslims will be affected[9].

How does the Act affect the people in the North East?

The concerns regarding the Act in the North East is not about Hindus versus Muslims. But, the issue is about Locals versus Foreigners. The immigration issues faced by the North east has been going on for a long time ever since the persecuted minorities of Bangladesh have been moving into the North East for shelter. Because of this, the demography of the region has changed. In 1971, Many Hindu Bengalis who faced state- sponsored persecution in East Pakistan has turned the demography of Tripura from indigenous tribal majority into a Bengali majority state. In Assam, there was a decline of Assamese speakers from 57.81% in 1991 to 48.83% in 2011. Bengali speakers in the North eastern states have increased to 28.91% from 21.67% from 1991 till 2011. An ethnic tribe of Assam called Bodo had a decreased speaking population from 4.86% to 4.53% from 1991 till 2001. As there has been a decrease in the indigenous population, the original inhabitants of the North East fear a situation like Tripura[10].

The Act specifies that it will not apply to the tribal areas of Assam, Tripura, Mizoram, and Meghalaya included in the Indian Constitution’s Sixth Schedule, nor will it apply to the areas covered by the Inner Line Permit. Arunachal Pradesh, Nagaland, and Mizoram are included in the Inner Line since no citizen can overstay without permission unless they are a resident of that state. However, 26 Assam districts are not covered by the sixth schedule, and many people are not protected under the sixth schedule, putting them at risk of being displaced by immigration. If Bangladeshi immigrants obtain citizenship, they will be citizens of India and will be entitled to settle, practise trade and business, and find work in the Assam tribal areas, which are covered under the sixth schedule of the Indian constitution. Because Bangladesh shares a 2217-kilometer border with Meghalaya, Tripura, and Mizoram, as well as being close to the rest of the North Eastern states, illegal Bangladeshi immigrants who entered India on or before December 31, 2014 will settle in these states, endangering the lives of native North Easterners.

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Assam is a multi-tribal state with more than 200 tribes and 50 dialects. Resources, jobs, and property are limited, and if a large number of illegal immigrants take over, the standard of living of people in the North East and those who have lived in India since the beginning will be lowered. The cultural identity of India will be jeopardized if immigrants from other nations are granted citizenship and begin to live here[11].

On 15^th August, 1985, Assam Accord was signed between the representatives of India and the leaders of the Assam Movement in New Delhi. According to the Assam Accord, if any individual fails to prove their ancestry in India on or before 21^st March 1971, they will be deemed as an illegal immigrant. The Assam Accord ended the six year agitation against the illegal immigrants in Assam and did not discriminate on the basis of religion. The Act, on the other hand, is in violation of the 1985 Assam Accord. The Assam Accord’s exact definition of illegal immigration is irrelevant. The Act moves the deadline from March 25, 1971 to December 31, 2014. It is unjust and unfair to the Assamese to move the deadline. Clause 6 of the Assam Accord stipulates that constitutional, legislative, and administrative safeguards will be established, as necessary, to conserve, preserve, and develop the people of Assam’s cultural, social, and linguistic identities and legacy. The CAA will make Assam a Bengali-speaking majority, making Assamese a minority in their own state and jeopardizing their cultural, linguistic, and traditional identities.

Conclusion

India being the second largest Muslim countries and the people of India irrespective of caste, creed and religion live in peace and prosperity. The framers of the Constitution wanted our country to be secular and without any discrimination and without persecuting any religion.

But, the Citizenship Amendment Act, 2019 states that people belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities may have faced persecution on the grounds of religion in the respective countries of Pakistan, Afghanistan and Bangladesh. It means that the Act assumes that religious persecution exists only for those who do not profess a religion that is adopted by the respective country’s state religion. The assumption made by the Act leads to the inception of an intelligible differentia for the non- Muslim migrants. It clears a way for legal and constitutional basis for leaving the Muslim immigrants who entered India and stayed longer than they were permitted to remain in the country without any proper documentation. Nevertheless, it is a strenuous task for the Government to differentiate among the illegal immigrants who faced religious persecution and those who came for better economic prospects.