Citizenship (Amendment)Bill 2019
CITIZENSHIP (AMENDMENT) BILL 2019
Citizenship is the legal right to belong to a particular country. In other words, citizenship bestows upon individuals membership in a national political community. Citizens enjoy civil and political rights in a sovereign state. Citizenship within the Indian Constitution: The Constitution of India provided for Citizenship to Indians under Article 5 to 11
- Article 5:provides for citizenship by domicile.
- Article 6:grants citizenship to persons who migrated from Pakistan to the present India before the commencement of the Constitution of India
- Article 7:confers citizenship on those persons who migrated to Pakistan after announcement of Independence but later returned back to India
- Article 8:provides for citizenship to those persons whose parentsor grandparents were born in India, but are resident of abroad
- Article 9: provides that any person who acquired the citizenship of any other country will not be entitled to the citizenship of India.
- Article 10:states that all citizens shall continue to be citizens of India
- Article 11: confers power on the Parliament to make rules regarding citizenship
- Article 5:provides for citizenship by domicile.
- Article 6:grants citizenship to persons who migrated from Pakistan to the present India before the commencement of the Constitution of India
- Article 7:confers citizenship on those persons who migrated to Pakistan after announcement of Independence but later returned back to India
- Article 8:provides for citizenship to those persons whose parentsor grandparents were born in India, but are resident of abroad
- Article 9: provides that any person who acquired the citizenship of any other country will not be entitled to the citizenship of India.
- Article 10:states that all citizens shall continue to be citizens of India
- Article 11: confers power on the Parliament to make rules regarding citizenship
The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019. It amended the Citizenship Act of 1955 by providing a path to Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities from the neighboring Muslim majority countries of Pakistan, Bangladesh and Afghanistan. The act was the first time religion had been used as a criteria for citizenship under Indian law.
The Hindu nationalist Bharatiya Janata Party (BJP), which leads the Indian government, had promised in previous election manifestos to provide a home for persecuted religious minorities from neighboring countries, such as Hindu refugees. It had attempted to pass a similar bill in 2016.Under the 2019 amendment, migrants who entered India by 31 December 2014, and had suffered "religious persecution or fear of religious persecution" in their country of origin, were made eligible for citizenship by the new law. The amendment also relaxed the residence requirement for naturalization of these migrants from 11 years to 5 years.According to the Indian Intelligence Bureau, the Act will add about 31,300 new citizens to India's 1.3 billion population. About 25,400 Hindus, 5,800 Sikhs along with less than 100 Christians and other religious minorities are expected to be immediately eligible for citizenship under the amended Citizenship Act.
The amendment has been subject to widespread criticism, on the grounds that it discriminates on the basis of religion. The Office of the United Nations High Commissioner for Human Rights stated that the law was "fundamentally discriminatory".Critics expressed concerns that the bill would be used, along with the National Register of Citizens, to marginalize Muslims,and make 1.9 million Muslim immigrants stateless.Commentators also question the exclusion of persecuted religious minorities from other regions such as Tibet, Sri Lanka and Myanmar.
The passage of the legislation caused large scale protests in India.Assam and other northeastern states have seen violent demonstrations against the bill over fears of non-Muslim illegal immigrants being naturalized under these provisions,thus impacting the local culture and society.Universities across the country saw huge protests by students and the police were subsequently accused of resorting to brutal suppression.As of 12 December, the protests had resulted in more than a thousand arrests and six deaths. Civil liberties were frequently suspended by the police in response to these protests, and the internet was also suspended in several areas.
Legislative history
The Bill was introduced in Lok Sabha on 19 July 2016 as the Citizenship (Amendment) Bill, 2016. It was referred to the Joint Parliamentary Committee on 12 August 2016. The Committee submitted its report on 7 January 2019 to Parliament. The Bill was taken into consideration and passed by Lok Sabha on 8 January 2019. It was pending for consideration and passing by the Rajya Sabha. Consequent to dissolution of 16th Lok Sabha, this Bill has lapsed.
Subsequently after the formation of 17th Lok Sabha, the Union Cabinet cleared the Citizenship (Amendment) Bill, 2019, on 4 December 2019 for introduction in the parliament. The Bill was introduced in 17th Lok Sabha by the Minister of Home Affairs Amit Shah on 9 December 2019 and was passed on 10 December 2019, with 311 MPs voting in favour and 80 against the Bill.
The bill was subsequently passed by the Rajya Sabha on 11 December 2019 with 125 votes in favour and 105 votes against it.Those voted in favour included BJP allies such as Janata Dal (United), AIADMK, Biju Janata Dal, TDP and YSR-Congress.
After receiving assent from the President of India on 12 December 2019, the bill assumed the status of an act.The act will come into force on a date chosen by the Government of India, and will be notified as such.
The first hearing by the Supreme Court of India on 60 petitions challenging the Act was on 18 December 2019. During the first hearing, the court declined to stay implementation of the Citizenship (Amendment) Act, 2019. The court has set January 22, 2020 as the next date of hearing.
Analysis
The Bill amends the Citizenship Act of 1955 to give eligibility for Indian citizenship to illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, and who entered India on or before 31 December 2014. The bill does not include Muslims. Immediate beneficiaries of the Bill, according to Intelligence Bureau records, will be just over 30,000 people. India's previous citizenship law, Citizenship Act 1955, did not consider religious affiliation to be a criterion for eligibility.
Under the Act, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 11-year requirement to five years for persons belonging to the same six religions and three countries. The bill exempts the tribal areas of Assam, Meghalaya, and Tripura from its applicability. It also exempts the areas regulated through the Inner Line Permit,which,include.ArunachalPradesh,Mizoram and Nagaland.The inclusion of Manipur in Inner Line Permit was also announced on 9 December 2019.
The Bill includes new provisions for cancellation of the registration of Overseas Citizenship of India (OCI) such as registration through fraud, in case of OCI holder sentenced to imprisonment for two or more years within five years of registration and in necessity in the interest of sovereignty and security of India. It also includes a provision on violation of any law notified by the central government. It also adds the opportunity for the OCI holder to be heard before the cancellation.
Exclusion of Muslims
The Bill amends the Citizenship Act of 1955 to give eligibility for Indian citizenship to illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, and who entered India on or before 31 December 2014. The bill does not include Muslims. Immediate beneficiaries of the Bill, according to Intelligence Bureau records, will be just over 30,000 people. India's previous citizenship law, Citizenship Act 1955, did not consider religious affiliation to be a criterion for eligibility.
Under the Act, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 11-year requirement to five years for persons belonging to the same six religions and three countries. The bill exempts the tribal areas of Assam, Meghalaya, and Tripura from its applicability. It also exempts the areas regulated through the Inner Line Permit,which,include.ArunachalPradesh,Mizoram and Nagaland.The inclusion of Manipur in Inner Line Permit was also announced on 9 December 2019.
The Bill includes new provisions for cancellation of the registration of Overseas Citizenship of India (OCI) such as registration through fraud, in case of OCI holder sentenced to imprisonment for two or more years within five years of registration and in necessity in the interest of sovereignty and security of India. It also includes a provision on violation of any law notified by the central government. It also adds the opportunity for the OCI holder to be heard before the cancellation.
Exclusion of Muslims
Muslims from Pakistan, Bangladesh and Afghanistan are not offered citizenship under the new Act. Critics have questioned the exclusion. The Amendment limits itself to the Muslim-majority neighbours of India and, secondly, takes no cognizance of the persecuted Muslims of those countries, such as Ahmadiyyas in Pakistan and the Hazaras in Afghanistan and Pakistan. There are said to be refugees belonging to these groups in India, who have not been offered any relief.
According to the Indian government, Pakistan, Afghanistan and Bangladesh are Muslim-majority countries. They have modified their Constitutions in recent decades to declare Islam as their official state religion, and therefore Muslims in these Islamic countries are "unlikely to face religious persecution". The government states that Muslims cannot be "treated as persecuted minorities" in these Muslim-majority countries.
Muslims from Pakistan, Bangladesh and Afghanistan are not offered citizenship under the new Act. Critics have questioned the exclusion. The Amendment limits itself to the Muslim-majority neighbours of India and, secondly, takes no cognizance of the persecuted Muslims of those countries, such as Ahmadiyyas in Pakistan and the Hazaras in Afghanistan and Pakistan. There are said to be refugees belonging to these groups in India, who have not been offered any relief.
According to the Indian government, Pakistan, Afghanistan and Bangladesh are Muslim-majority countries. They have modified their Constitutions in recent decades to declare Islam as their official state religion, and therefore Muslims in these Islamic countries are "unlikely to face religious persecution". The government states that Muslims cannot be "treated as persecuted minorities" in these Muslim-majority countries.
Exclusion of non-Muslim countries
The Act does not include non-Muslim neighbouring countries of India. For example, the Act is silent about Hindu refugees from Sri Lanka. Political parties such as Dravida Munnetra Kazhagam with support of Biju Janata Dal and Shiv Sena have sought automatic citizenship rights for Tamil Hindus from Sri Lanka.They were allowed to legally settle in the Indian state of Tamil Nadu in 1980s and 1990s due to systemic violence from Sinhalese of Sri Lanka. The Act does not include the 29,500 "hill country Tamils" (Malaiha), many of whom live in refugee camps in Tamil Nadu, are married to Indian citizens and but not recognized as Indian citizens. A June 2019 High Court ruling, however, states that they qualify for citizenship under existing laws of India. Further, according to Suryanarayan, the situation with Tamil Hindu refugees from Sri Lanka is complicated because in certain cases they do not seek Indian citizenship and want to return to Sri Lanka.
The Act does not provide relief to Tibetan Buddhist refugees from China.They came to India in the 1950s and 1960s. Their status has been of refugees over the decades, though one source states that Dalai Lama was granted political asylum in 1959. According to a 1992 UNHCR report, the then Indian government stated that they remain refugees and do not have the right to acquire Indian nationality.
Furthermore, the act excludes both Hindu and Buddhist refugees from Nepal and Bhutan. There are reports that Bhutan discriminates against Hindus living in the country through a Buddhist-only society, and there are currently thousands of Buddhist and Hindu refugees from Bhutan living in camps in Nepal who are unable to gain citizenship to neither Bhutan, Nepal or India, and are effectively stateless.
Citizenship (Amendment) Bill, 2019 Key highlights:
- The bill seeks to amends 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. Note: The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship
- It seeks to reduce the minimum years of residency in India to apply for citizenship to be lessened from 12 years to 7 years for such migrants.
- The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law.
- The Bill will apply to all States and Union Territories of the country.
Who are illegal migrants?
• According to Citizenship Act 1955, an illegal migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted time period • Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.
Issues and Challenges:
1.Violation of Right to Equality:
>The bill violates the Right to Equality (Article 14) as it seeks to grant citizenships to illegal migrants on the basis of religion.
>It fails the test of reasonability contained in Article 14. This is because it does not provide any concrete reasons for limiting eligibility of citizenship to 6 minorities of only 3 countries.
>For example: Rohingya Muslims from Myanmar, Ahmadiyya and Shia Muslims from Pakistan and Uighur Muslims from China who face religious persecution have been overlooked.
>Against the Basic Structure of the Constitution: Critics argue that the bill undermines secularism and is thus against the Basic Structure of the Constitution. Secularism as a basic structure has been reiterated by the Supreme Court in S R Bommai vs. Union of India (1994)
2. Violation of Assam Accord:
> Section 6A of the Citizenship Act relates to provisions for citizenship of people covered by the Assam Accord. The Act fixes March 25, 1971 as the cut-off date for granting citizenship to Bangladeshi migrants in Assam. However, the Bill makes December 31, 2014 as the cut-off date.
> Critics argue that the bill would undermine the rights of indigenous Assamese people and would be in violation of Clause 6 of Assam accord which ensures constitutional, legislative and administrative safeguards, to protect, preserve and promote the culture, social, linguistic identity and heritage of the Assamese people
3. Conflict with NRC:
> There is an apprehension that the Bill would be in conflict with the ongoing exercise to update the National Register of Citizens in Assam, for which the cut-off date is March 25th, 1971
4. Vague procedure to cancel OCI registration:
> The Bill allows cancellation of OCI registration for violation of any law. But the offences covered under this have not been mentioned, hence, OCI can be cancelled for petty offences.
5. Fails on the tenets of international refugee law:
> Although India is not a signatory to the 1951 UN Refugee Convention, granting refuge based on humanitarian considerations is arguably a norm of customary international law. The bill considers persecuted minorities as migrants whereas word migration refers to the voluntary movement of people, primarily for better economic prospects. Contrarily, refuge is an involuntary act of forced movement.
6. Concerns over Insurgency:
> The North Eastern states have vehemently opposed the bill over the concerns that citizenship to illegal migrants would pose a threat to their cultural and linguistic identity and put a strain on resources and economic opportunities.
> There have already been widespread protests in NE states which further arise concerns over insurgency.
7. Violation of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP):
> The bill particularly violates Clause 1 of the Declaration which states that indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
Conclusion :
- The Bill should be seen in a positive light as it seeks to address the plight of persecuted minorities who had no other option aside from coming to India illegally.
- However, the government must look to accommodate the Ahmadiyyas, Uyghurs and Rohingyas who are persecuted minorities and have approached India to seek refugge in time of need.
- Further, the government should also formulate policies and take appropriate measures to provide education, employment and a decent living to the concerned migrants.
- The government should take necessary steps to assure that the rights ad socio-cultural identity of indigenous people is not affected.
AUTHOR BY :- Adv. Maitry Ketankumar Kansara
The Act does not include non-Muslim neighbouring countries of India. For example, the Act is silent about Hindu refugees from Sri Lanka. Political parties such as Dravida Munnetra Kazhagam with support of Biju Janata Dal and Shiv Sena have sought automatic citizenship rights for Tamil Hindus from Sri Lanka.They were allowed to legally settle in the Indian state of Tamil Nadu in 1980s and 1990s due to systemic violence from Sinhalese of Sri Lanka. The Act does not include the 29,500 "hill country Tamils" (Malaiha), many of whom live in refugee camps in Tamil Nadu, are married to Indian citizens and but not recognized as Indian citizens. A June 2019 High Court ruling, however, states that they qualify for citizenship under existing laws of India. Further, according to Suryanarayan, the situation with Tamil Hindu refugees from Sri Lanka is complicated because in certain cases they do not seek Indian citizenship and want to return to Sri Lanka.
The Act does not provide relief to Tibetan Buddhist refugees from China.They came to India in the 1950s and 1960s. Their status has been of refugees over the decades, though one source states that Dalai Lama was granted political asylum in 1959. According to a 1992 UNHCR report, the then Indian government stated that they remain refugees and do not have the right to acquire Indian nationality.
Furthermore, the act excludes both Hindu and Buddhist refugees from Nepal and Bhutan. There are reports that Bhutan discriminates against Hindus living in the country through a Buddhist-only society, and there are currently thousands of Buddhist and Hindu refugees from Bhutan living in camps in Nepal who are unable to gain citizenship to neither Bhutan, Nepal or India, and are effectively stateless.
Citizenship (Amendment) Bill, 2019 Key highlights:
- The bill seeks to amends 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. Note: The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship
- It seeks to reduce the minimum years of residency in India to apply for citizenship to be lessened from 12 years to 7 years for such migrants.
- The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law.
- The Bill will apply to all States and Union Territories of the country.
Who are illegal migrants?
• According to Citizenship Act 1955, an illegal migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted time period • Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.
Issues and Challenges:
1.Violation of Right to Equality:
>The bill violates the Right to Equality (Article 14) as it seeks to grant citizenships to illegal migrants on the basis of religion.
>It fails the test of reasonability contained in Article 14. This is because it does not provide any concrete reasons for limiting eligibility of citizenship to 6 minorities of only 3 countries.
>For example: Rohingya Muslims from Myanmar, Ahmadiyya and Shia Muslims from Pakistan and Uighur Muslims from China who face religious persecution have been overlooked.
>Against the Basic Structure of the Constitution: Critics argue that the bill undermines secularism and is thus against the Basic Structure of the Constitution. Secularism as a basic structure has been reiterated by the Supreme Court in S R Bommai vs. Union of India (1994)
2. Violation of Assam Accord:
> Section 6A of the Citizenship Act relates to provisions for citizenship of people covered by the Assam Accord. The Act fixes March 25, 1971 as the cut-off date for granting citizenship to Bangladeshi migrants in Assam. However, the Bill makes December 31, 2014 as the cut-off date.
> Critics argue that the bill would undermine the rights of indigenous Assamese people and would be in violation of Clause 6 of Assam accord which ensures constitutional, legislative and administrative safeguards, to protect, preserve and promote the culture, social, linguistic identity and heritage of the Assamese people
3. Conflict with NRC:
> There is an apprehension that the Bill would be in conflict with the ongoing exercise to update the National Register of Citizens in Assam, for which the cut-off date is March 25th, 1971
4. Vague procedure to cancel OCI registration:
> The Bill allows cancellation of OCI registration for violation of any law. But the offences covered under this have not been mentioned, hence, OCI can be cancelled for petty offences.
5. Fails on the tenets of international refugee law:
> Although India is not a signatory to the 1951 UN Refugee Convention, granting refuge based on humanitarian considerations is arguably a norm of customary international law. The bill considers persecuted minorities as migrants whereas word migration refers to the voluntary movement of people, primarily for better economic prospects. Contrarily, refuge is an involuntary act of forced movement.
6. Concerns over Insurgency:
> The North Eastern states have vehemently opposed the bill over the concerns that citizenship to illegal migrants would pose a threat to their cultural and linguistic identity and put a strain on resources and economic opportunities.
> There have already been widespread protests in NE states which further arise concerns over insurgency.
7. Violation of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP):
> The bill particularly violates Clause 1 of the Declaration which states that indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
Conclusion :
- The Bill should be seen in a positive light as it seeks to address the plight of persecuted minorities who had no other option aside from coming to India illegally.
- However, the government must look to accommodate the Ahmadiyyas, Uyghurs and Rohingyas who are persecuted minorities and have approached India to seek refugge in time of need.
- Further, the government should also formulate policies and take appropriate measures to provide education, employment and a decent living to the concerned migrants.
- The government should take necessary steps to assure that the rights ad socio-cultural identity of indigenous people is not affected.
AUTHOR BY :- Adv. Maitry Ketankumar Kansara
Very good
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