Obtaining balanced assessment of the Bill rather than relying on public rhetoric and fear mongering
“How in any way does EQUALITY with other people equate to ‘religious persecution? Does the survival of a religion depend on the vilification and desecration of the humanity of others?”-
Christina Engela (Dead Man’s Hammer)
The above quote explains how religious persecution dehumanizes a particular religious group at a societal level.
The Constitutional Amendment Bill (now Citizenship Amendment Act, 2019) was given the assent of the President on 12.12.2019. The Act amended the Citizenship Act, 1955 in order to grant Indian Nationality to Hindus, Sikhs, Buddhists, Jains, Parsees and Christians coming to India after facing religious persecution in Pakistan, Bangladesh and Afghanistan.
Contents and History of the Amendment Act
Coming to the legislative history, in 2015, there were some notifications which were dealing with these 3 countries and 6 communities, then in 2016, the bill was introduced which sought to amend the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship provided that people belong to these communities as mentioned above coming from the mentioned 3 countries. The Bill was referred to the Select Committee who in its recommendation gave some dissent note and stated that the Bill does not clearly explains the reason of introducing the bill. The Bill also talked about the registration of Overseas Citizen of India (OCI) cardholders which may be cancelled if they violate any law of land.
Since the bill only passed through Lok Sabha and not through Rajya Sabha, therefore it got lapsed and now it has been brought up again in 2019 with more clarity, wherein the Statement of Object and Reason, paragraph 2, mentions our neighboring countries and their Constitution where a State religion has been talked about, and the people not following (minority) particular State religion are facing difficulties, therefore the Act has been brought upon the given basis. The process of acquiring Citizenship through naturalization which demands 11 years of stay in the country (1955 Act), the 2019 Act has reduced it to 5 years which was 6 years in the 2016 Bill.
Another thing is regarding the OCI, that the Central Government will prepare the list of laws, violation of which will result in the revocation of OCI card.
Also, this Act doesn’t apply on 6th Schedule areas (areas where there is a large number of tribal population and if people from outside started living in their areas, then their indigenous nature which consists of their language, culture and way of living would get affected) and North East states. Talking about 6th schedule, there are 4 states, Assam, Meghalaya, Mizoram and Tripura and other states where Inner Line Permit is required. To save this, the provision has been added in 2019 Act which was not there in 2016 bill.
Decoding the Dispute
The issue with this Act is that a large section of people and organizations in the North East have opposed the Act and many major parties like Congress, Communist party of India have steadfastly opposing the bill claiming that Citizenship can’t be given on the basis of religion. So before forming any opinion, let’s understand why is there a need to change the Citizenship act of 1955?
Illegal migrants face difficulty during their categorization and recognition even when they’ve been living on the Indian soil for generations as India does not have a refugee mechanism and what we follow is a Standard Operating Procedure issued by Ministry of Home Affairs in 2014 which is primarily based on a clearance given from the security agencies on the basis of whether or not a particular group is persecuted in the country, followed by application of the principle of non-refoulement, in turn followed by the test of whether they pose a threat to India’s security. Once these 3 questions are answered in positive and affirmative, we end up giving clearance to them.
The yardstick used for promulgation of the 2019 act was who or which community constitutes a minority in the neighboring countries so chosen (which are predominantly Muslim countries), one could come to the conclusion that such Community would be non Muslims. However what’s been left out of the light is the predicament of minorities which are Muslim themselves yet face persecution? For instance the Ahmadiya Muslims in Pakistan facing sectarian violence. But if India seeks to open its gates for them, it needs to be a bit more careful as we have seen the case in the States of North East like Assam, Tripura who have faced the brunt of it.
Therefore the Citizenship act must be looked at in the context of a continuum of the existence of a two nation theory which continues to be alive and kicking in other parts of the world.
The fears of the demographic change especially in the northeastern states as a result of this Act, are very much genuine as seen in the case of Tripura where Bengali Hindus outnumbered the indigenous people living in Tripura after the violence in East Pakistan.
Now what happens to the Assam Accord and to the rights of the indigenous people? Here the government has to see who all people are illegal immigrants, or say, who came to India for better economic opportunities and the people who do not have any other place to go because the place where they lived has become an inferno for religious persecution. Since the people who are here because of religious persecution see India as their natural homeland rightly so therefore, they should be allowed here in India. The Government should construct a balance between the constitutional promises which are made to the States of the Northeast with respect to the protection of their indigenous identity and the civilizational duty to people who are being persecuted in the neighborhood.
The government while addressing this particular issue should share the burden with other states which are in a better position to accommodate these people, for instance, if we look at Pakistan Hindu refugees who came from Pakistan, they are largely in Delhi, Rajasthan and some part of Haryana. Here Rajasthan has been welcoming them because they don’t see a problem as far as their indigenous identity is concerned because it’s largely not same as the tribal identity in the North East so perhaps the Government should ask for the help of other states which are in a better position to absorb this particular community.
Also, the Inner Line Permit area should be relooked into, the Government should extend the Inner Line Permit for the political and socio economic development of the region.
There are concerns whether the act of 1955 could not be tweaked with some administrative action within the ambit of the Act to take care of these issues instead of enacting an Act like this and bringing religious elements into it? Also discussions about the violation of Article 14 have taken place at a large scale.
Let us understand this that when somebody is being targeted on the basis of religion to actually say that let us actually turn a blind eye to the motivation behind the particular persecution is to insult that particular person who is already at the receiving end of the rough end of the stick. Also, assuming that we have made a change to the citizenship act on mass and then introduced a religious element into it that would have been deeply problematic and that would have opened it up to a lot more constitutional challenges however here it has actually limited the scope of the particular exercise to 3 specific countries which has a specific religious identity by virtue of their Constitution and there is a religious minority in that particular community that is being targeted because of its religion which is precisely why there is an amendment which is specific to that particular area so to address that particular audience.
Now talking about the constitutionality of this Act w.r.t Article 14, we have to see the concept of Articles 5 to 11 under the Constitution and what it actually stands for existing citizens and citizens under article 5 to 11 cannot be discriminated against on the basis of their religion in the eyes of the law but vesting of Citizenship is different from existing citizens, which means when somebody chooses to enter a particular country, the country has a right to actually impose certain conditions. Several Judgements clearly states that when it comes to vestation of status of refugees or when an outsider enters the country, the country has the right to apply its discretionary filters in terms of granting both the status of refugees as well as citizenship.
The US Commission for International Religious Freedom alleged that the Citizenship (Amendment) Bill enshrines a pathway to citizenship for immigrants that specifically exclude Muslims, setting a legal criterion for citizenship based on religion.
India in its response to the strongly worded statement, Ministry of External Affairs has termed it ‘neither accurate not warranted’. The bill seeks to meet the basic human rights of persecuted religious minorities already in India from certain contiguous countries and the statement of U.S. panel is guided only by the prejudice and biases on a matter on which it clearly has little knowledge and no locus standi.
Every country as sovereign state whether it’s a civilizational state or a nation state has right to apply its security considerations before it applies the principle of non-refoulement. One has to see what are the facts and what is the Constitutional issue. Facts are that the scope of this particular act is limited to 3 countries which have a specific Islamic character, therefore, when they choose to enter into India, it is applying a certain filter of persecution on the basis of religion, one cannot take away that aspect from the calculus altogether because if we do so, we’re not allowing the person who is suffering the particular persecution to tell you the cause of the particular persecution.
It can be said that what all things are happening is due to legacy of partition, as the partition was based on religious ground. The newly formed states which can also be termed as theocratic states gave a particular religion an upper hand. One has to see that the concessions which are being given to the minority community in those theocratic states are needed or not. This should be seen as a continuation of the partition as people who were left behind in those theocratic states should be given the concessions because of the atrocities that were taking place upon them since the partition which can be seen by looking at the downfall in the population of the minority communities in these states.
Basically this is a step for addressing the problems that are there because of the legacy of the partition and second because of the civilizational responsibility which India has and has been upholding for a very long time. This Act is not based on the Religion, this should be seen as an Act which talks about the people who are persecuted on religious grounds.