Author: Vipul Solanki, II year of B.B.A.,LL.B. from BM Law College, Jodhpur
Co-author: Aditi Vyas, II year of B.B.A.,LL.B. from BM Law College, Jodhpur
A citizen of a state is person who enjoys full civil and political rights. Citizenship carries with it certain advantages given by the constitution. There are two types of people in country, one is a citizen and another is an alien. Aliens do not enjoy the rights given by the constitution. There are certain fundamental rights available to the citizens given by the constitution.
The constitution in its Part II covers the definition of citizenship. Article 5 to article 11 covers the citizenship. Citizenship on the commencement of the Constitution i.e., January 26, 1950. People falling under the article 5 to 8 of the Indian constitution shall be citizen of India at commencement of constitution
1. Citizenship by domicile (Article 5): Article 5 entitles to citizenship by domicile if the person at commencement of the constitution has his domicile in India and secondly, either he was born in India or one of his parents was born in India or he must have been a resident in India for not less than five years before the commencement of the constitution
2. Citizenship of emigrants from Pakistan (article 6): People who have migrated from Pakistan have been divided into two categories for purpose of citizenship, (i) those who came to India before July 19, 1948; (ii) those who came to India after July 19, 1948. This article provides that a migrant from Pakistan is deemed to be a citizen of India at the commencement of the constitution if he or either of his grandparents or parents were born in India and also must fulfil the conditions which apply in the following two cases:
If he migrated to India before July 19, 1948, he has been residing in India since the date of his migration
If he migrated to India after July 19, 1948, and has been registered as Indian Citizen by an officer appointed by the government of India.
3. Citizenship of migrants to Pakistan (Article 7): Under article 7a,a citizen by domicile or by migration,gets his citizenship terminated if he has migrated to Pakistan after March 1, 1947, though there are exceptions in favor of a person who has returned to India on the basis of permit for resettlement in India.
4. Citizenship of Indians Aroid (Article 8): Article 8 provides that any person or either of whose parents or any of those grand-parents was born in India as defined in the Government of India Act,1935, and who is ordinarily residing in any country outside India, shall be deemed to be a citizen of India as if he has been registered as a citizen of India by the Diplomatic or Consular representative of India in the country where he is for the time being residing, on an application made by him to such representative before or after 26 Jan 1950 in the manner prescribed by the Government of Dominion of India.
Citizenship Amendment Acts
In the Citizenship act of 1995, the act provided rules for determination and acquisition of the Indian citizenship. It also allows the people who were once a citizen of India and are now residing in another country to provide and Overseas citizens of India Card. This act of Indian citizenship has till date been amended for 6 times, in 1986, 1992, 2003, 2015, and the latest in 2019 which created a very bad scenario in the countries with protests carrying out nation-wide.
In the 1986 amendments of the amendment was made that to acquire the citizenship either of the parents must be a citizen of India during the time of birth
The 1992 amendment stated that person born outside India shall be a citizen of India by descent, on or after January 26, 1950, but before December 10, 1992, if his father is a citizen of India at the time of his birth.
The 2003 amendments introduced to us a new term “illegal immigrants” and also Made the government to conduct a National Registrant of Citizens. This amendment inserted the Section 14A for the headcount of Indian Citizens and Conduction of NRC in the country.
IN the 2005 amendment the government made provisions for the people residing of the country of Indian origin by introducing the concept of Person of Indian Origin (PIO) and overseas citizens of India (OCI) which granted them certain limited rights of a citizen.
The 2015 amendment introduced the concept of an ‘Overseas Citizen of India Cardholder’ (an “OCC”) that essentially replaced and merged OCIs and PIOs. The merging of the two schemes provided PIO cardholders the benefits extended to OCIs, such as visa-free travel to India, rights of residency and participation in business and educational activities in the country.
The new citizenship act, 2019 made provisions for the illegal immigrants of six communities from Pakistan, Afghanistan, and Bangladesh to apply for citizenship and certain other provisions discussed further in the article.
Citizenship Amendment Act, 2019
According to this act Hindus, Christians, Sikhs, Jains, Parsi and Buddhists who have entered India Illegally or without a valid visa on or before December 31, 2014 from the Muslim majority countries Pakistan, Afghanistan, Bangladesh and have stayed in the country for 5 years or more are eligible to apply for citizenship.
The refugees from the six religions (Sikhs, Buddhists, Jain, Parsi, Christian, Hindus) will be given citizenship after residence of 5 years now instead of 11 years, stated by the act. This act made provisions for these six religions that they be granted Indian citizenship from the date they entered India after 31st December 2014 and all the legal proceedings against them for being an illegal immigrant be closed. The bills also provide that these provisions will not be applicable for the tribes of Meghalaya, Assam,Mizoram, or Tripura, as included in the Sixth Schedule to the Constitution. Also, it will not be applicable on the areas under the Inner Line[i]. Immigrants from other countries such as Hindu from Sri Lanka and Muslims (Rohingya) from Myanmar are not included in this act.
This act is one of the most controversial and one of the most disliked acts by the Indian citizens. There are nationwide protests going against the passing of this act.
Changes Made for the OCI card
In the act passed in 1955 it was provided that the registration of the OCI card holder may get cancelled by the government on certain grounds., now in the new amendment the registrations can be called off on the grounds of violation of any laws provided by the government. Also, the order for the cancellation cannot be passed until the violator is being heard. This change can prove to excessive delegation of power by the legislation to the government to decide the laws on whose basis the registration of OCI card holder may get cancelled.
The bill has also not provided any limits or guidance on the government passing out the rules to be followed, which is violative of The Supreme court’s order that while delegating powers to theexecutive authority, the legislature must prescribe a rule, standard, or policy for their guidance, that will set limits on the authority’s powers and not give them arbitrary discretion to decide how to frame the rules.[ii]
Why these new provisions?
In India we do have other good provisions for providing citizenships to people, but the provisions are for providing citizenship to people who migrated legally, i.e., using a valid visa[iii]. Migrants which cross the border without any proper paperwork are not given citizenship and are even prosecuted for the same. According to the government, the need for this provision was to provide citizenship to the illegal non-Muslim immigrants who were not treated properly in the neighboring countries. The Muslims had other Islamic countries for their support but there was no country providing support to the non-Muslim communities.
Government says that these minority groups have come escaping oppression in Muslim-majority countries. However, the logic is not consistent – the bill does not protect all religious minorities, nor does it apply to all neighbors. The Ahmadi Muslim sect and even Shia’s face discrimination in Pakistan. Rohingya Muslims and Hindus face persecution in neighboring Burma, and Hindu and Christian Tamils in neighboring Sri Lanka
Nation-wide protests
The nationwide protest is being carried out by two different types of groups one is by the north east states like Assam and Arunachal Pradesh, etc. as they fear that he there will be a rush of Bengali Hindu migrants from Bangladeshwhich will disturb their geographic, cultural and linguistic uniqueness, they don’t care about the other reasons. And the other protests are being carried out in the other states of India, due to exclusion of the Muslim community as it being against the constitution.
CAA 2019: “Unconstitutional and anti-muslim”?
This is a very controversial topic, as everyone stands a different take on the constitutionality of the act. After analyzing in detail one can say that this act is violation of the Section 14[iv] of the Indian Constitution as it excludes the Muslim immigrants residing in the country. The basis of providing citizenship is by proper documentation such as property papers, birth certificates. In a country like India, whose more than half of the population is still below the poverty line, it would be difficult for the poor Muslims to have a proper documentation in their hands, the other poor communities won’t be affected by it as they would be granted citizenship under this act. This act is clearlyviolating the provisions of Section 14 the Constitution of India which guarantees equality to each individual regardless of their religion, caste, creed, etc. but this act excludes the Muslim community on the basis of religion.
Governments take on the protests and the act being called unconstitutional
The government states that these six religions are being persecuted in the Muslim-majority nation and that they need to be protected from the persecution. On the other hand, there are Islamic nations for the Muslim communities to go. The governments states that there are no other countries for these religions that would provide shelters and refuge to them.
However, the government has still not answered the questions on including the Hindus and Christians minorities in Sri Lanka, Rohingya Muslims and Hindus which face persecution in Burma.
Conclusion
Citizenship amendment act, 2019, in my opinion is unconstitutional as it clearly violates article 14 of the Indian Constitution which guarantees equality to every person regardless of their race, caste, creed. There are some Muslims communities which face persecution even in the Islamic countries like the Ahmadis Muslim in Pakistan. There is an ordinance made in constitution of Pakistan which restrict the freedom of religion for the Ahmadis, they cannot call themselves Muslims or pose as Muslims which is punishable under three years of imprisonment. Another example is of the Rohingyas in Myanmar, the security forces in Myanmar have driven the Rohingyas off their land, burned down their mosques and committed rape of Rohingya Muslims. This proves that this act is biased against the Muslims, which the government defends by stating that for the Muslim minorities they have an option to move to the Islamic countries and that the other religious communities need to be protected from the persecution they face in the Islamic neighboring countries. Here in this act only the communities from Pakistan, Afghanistan and Bangladesh are taken into consideration stating that those communities face discrimination but, in Sri Lanka, the Tamilians and even the Hindus are not being treated well, then why those people are not being safeguarded, is still a big question-mark. Many PIL’s are pending in the Supreme Court of India, the results of which will prove as it being unconstitutional or not.
[i]Bengal Eastern Frontier Regulation, 1873
[ii] Hamdard Dawakhana and Anr., v. The Union of India (UOI) and Ors., AIR 1960 SC 554
[iii]Section 6, Indian Constitution
[iv]The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.