The Author, Abhigyan Chatterjee, is a student of 2nd year, BBA.LLB (H), Symbiosis Law School, Pune.
Citizenship is the legal right to belong to a particular country. In other words, citizenship grants individuals membership in a national political community. Part II of the Constitution relates to Citizenship of India. Articles 5 to 9 of the Constitution determine who are Indian citizens at the commencement of the Constitution. Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be made by Parliament. Article 11 widens the power of the Parliament to regulate the right of citizenship.
Dr. B.R. Ambedkar, the Chairman of the Drafting Committee of the Constitution of India had expressed hardship in drafting Article 5 when he stated: "this Article refers to, citizenship not in any general sense but to citizenship on the date of commencement of this Constitution. It is not the object of this particular Article to lay down a permanent law of citizenship for the country. The business of laying down permanent law of citizenship has been left to the Parliament, and as members will see from the wording of Article 6 (present day Article 11) as I have moved, the entire matter regarding citizenship has been left to Parliament to determine by any law it may deem fit".
Dr. Ambedkar also pointed out : "... but the Parliament may make altogether a new law embodying new principles. That is the first proposition that has to be borne in mind..." and also that "...they must not understand that the provisions that we are making for citizenship on the date of commencement of this constitution are going to be permanent or unalterable. All that we are doing is to decide ad hoc for the time being."[1]
Dr. Syama Prasad Mookerjee spoke on 19 April, 1950 in Parliament : "...the circumstances that have led to my resignation are primarily concerned with the treatment of minorities in Pakistan, specially in East Bengal… ...Let us not forget that the Hindus of East Bengal are entitled to the protection of India, not on humanitarian considerations alone, but by virtue of their sufferings and sacrifices, made cheerfully for generations, not for advancing their own parochial interests, but for laying the foundations of India's political freedom and intellectual progress… ...The establishment of 'a homogenous Islamic State' is Pakistan's creed and a planned extermination of Hindus and Sikhs and expropriation of their properties constitute its settled policy. As a result of this policy, life for the minorities in Pakistan has become "nasty, brutish and short".
From the above, both the need for legislation and the competency of the parliament to enact such legislation can be inferred. In order to properly interpret any statute, it is imperative to understand the statement of objects and reasons. The Law Commission of India, in its report has stated that the extrinsic aids to construe a statute may include debates in Parliament, report of the parliamentary Committees, Commissions, Statement of Objects and Reasons, Notes on Clauses, any international treaty or international agreement which is referred to in the statute, any other document relevant to the subject matter of the statute, etc.[2]
However, it must also be noted that it cannot be used to ascertain the true meaning and effect of the substantive provision of the statute,[3] and hence we also need to look at the reports of the Joint Parliamentary Commission as well as other authorities.
The statement of objects and reasons of the Citizenship Amendment Bill talks about: A historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. A large number of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947.[4]
This statement forms the basis of intelligible differentia for non-Muslim immigrants and creates the legal and constitutional basis for leaving out Muslim immigrants who entered India or stayed in India without valid documents. The Legislative Department of the Ministry of Law and Justice submitted as under:
"The proposed Amendment Bill may not violate the spirit of Article 14, as mentioned earlier, as it upholds the test of reasonable classification as propounded by a seven Judge Bench in the State of West Bengal v. Anwar Ali Sarkar.[5] Based on the clear classification adopted in the Bill, which is clear and substantial, there are sufficient reasons for making the distinction. There can be no element of arbitrariness in the classification proposed by virtue of these just reasons. With regard to Article 25, the proposed Amendment Bill does not, in anyway, affect the right of any person to freely profess, practice and propagate religion in the country.”
Attention is drawn to the case of Ram Krishna Dalmia v. Justice S R Tendolkar,[6] wherein the true meaning and scope of Article 14 was reiterated as follows; "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like.”
In the present case, religious persecution in neighbouring Islamic states is the intelligible differentia as per the government, and the object is to provide a one-time relief to such category of persons.
The legislation is aimed at those were ‘forced or compelled to seek shelter in India due to persecution on the ground of religion’ and aims to protect such people from the legal ramifications of illegal migration. The cut-off date is December 31, 2014, implying that applicants must have entered India on or before the date.
Before the Citizenship Amendment Bill was introduced, amendments were made as early as September 2015 to two laws: Passport (Entry Into India) Act, 1920 and Foreigner Act, 1946. These amendments effectively pardoned refugees from six minority religions from proving the possession of a valid unexpired passport or travel document.
This Act was always meant to be an amnesty of sorts — a one-time pardon to those who illegally migrated to India fleeing religious persecution. Hence, the cut-off date of December 31, 2014 was stipulated in amendments which were noted in the legislative books in September 2015.[7]
This means the law recognises the presence of illegal immigrants from the three countries Bangladesh, Pakistan and Afghanistan in India.
India faced another massive refugee influx in 1971 when an estimated 60 lakh people fled from the erstwhile East Pakistan, now Bangladesh and reached India as refugees.[8] India further faced an influx of refugees from Bangladesh between 1983 and 1986.
When any of the refugees are detained or arrested by the Indian authorities, there would always be a danger of refoulment, repatriate or deportation. Those refugees who are arrested for the illegal stay can be detained illegally under administrative order without charges.[9] The Foreigners Act vests an absolute and unfettered discretion in the Central Government to expel foreigners from India. Note, this does not apply to Indian citizens, regardless of their religion. The non-refoulment principle is the heart of the Refugee Convention which prevents deportation to a persecuting country. The Supreme Court of India in Hans Muller of Nurenburg v. Superintendent, Presidency[10] gave “absolute and unfettered” power to the Government to throw out foreigners. The said judgment was again upheld by the Supreme Court in Mr. Louis De Raedt & Ors v. Union of India.[11] In the same judgment, Supreme Court also held that foreigners have the right to be heard.
In the judgment of Ktaer Abbas Habib Al Qutaifi v. Union of India[12] the High Court of Gujarat held that the principle of non-refoulment avoids ejection of a displaced person where his life or freedom would be undermined by virtue of his race, religion, nationality, enrollment of a specific social gathering or political conclusion. Its application ensures life and freedom of a person irrespectively of his nationality.
One of the ways an otherwise illegal migrant may be granted Indian citizenship is by naturalisation, provided the conditions under the Third Schedule of the Act are fulfilled.
Under the Third Schedule, a person who makes an application for citizenship through naturalisation will be granted the same only if he has been residing in India or has been in government service in India throughout the period of twelve months immediately preceding the application.
Another condition is that such a person needs to have resided in India for eleven years out of the fourteen years preceding the application for naturalisation. In effect, a fresh applicant needs to wait for eleven years in order to become a citizen through the naturalisation route.
The Act has added a proviso to the definition of "illegal migrant" under Section 2 of the Citizenship Act. In effect, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants under the Act.
In the above context, the Joint Parliamentary Committee Report explains the inclusion of Afghanistan in the proposed Amendment.[13] The Committee enquired about the rationale for adding Afghanistan with countries like Bangladesh and Pakistan, which were a part of India in the pre-independence era.
In response, the Ministry of Home Affairs submitted as under:
"There have been multiple attacks against Indian interests in Afghanistan by the Pakistan establishment sponsored LET, Haqqani Network and Taliban. Besides, minority communities in Afghanistan had migrated to 36 Afghanistan from Pakistan region during pre-independence India. They are facing continuous atrocities due to their Indian origin."
The Ministry of Home Affairs (MHA) elaborated as follows: "A number of persons belonging to minority communities in Afghanistan have also come to India on account of religious persecution or fear of religious persecution. Hence, it was decided to include Afghanistan within the ambit of the Notification issued on the 7 September, 2015 by issuing two more Notifications on the 18 July, 2016".
Asked to State the reasons for leaving out other neighbouring countries like Sri Lanka, Myanmar etc., the MHA justified as under: "Government of India has issued a Standard Operating Procedure (SOP) vide letter dated 29.12.2011 for dealing with foreign nationals in India who claim to be refugees. These guidelines are applicable to refugees from various countries including Sri Lanka, Myanmar etc."
Spelling out the intent of the Government in bringing the Amendment, a representative of the Ministry of External Affairs (MEA) submitted in evidence: "... Sir, the first amendment aims to redress problems faced by the members of the minority community from Afghanistan, Bangladesh and Pakistan, who having entered India on a valid visa could not return to their countries for fear of religious persecution... ...Representations were received seeking extension of their visas and also permitting such individuals to apply for long-term visas. In the absence of this facility they were termed as illegal migrants and even deprived of basic amenities necessary for their well being. Against this backdrop the Ministry of Home Affairs vide its notification of 7th September, 2015, namely the Passport (Entry Into India) Amendments Rules, 2015 and the Foreigners (Amendment) Order, 2015 regularised the stay of such people who entered into India on or before 31st December, 2014. This was essentially in the nature of a one-time waiver or amnesty granted to these migrants from minority communities. The proposed amendment is a natural corollary to MHA’s notification of 7th September, 2015..."
The Committee then queried about the number of persons belonging to minority communities who would benefit from the proposed Amendment on the basis of religious persecution.[14] In response, the Intelligence Bureau (IB) informed as follows: "As per our records, there are 31,313 persons belonging to minority communities (Hindus - 25447, Sikhs - 5807, Christians - 55, Buddhists - 2 and Parsis - 2) who have been given Long Term Visa on the basis of their claim of religious persecution in their respective countries and want Indian Citizenship. Hence, these persons will be immediate beneficiaries."
The law is therefore, inclusionary in nature, and it can be inferred from the objective, structure and intent. An analogy can be drawn to the various personal laws that exist in India, governing particular sections of the community. The ground for persecution is religion, and hence the ground for citizenship is victim of religious persecution as per the act. If the act was drafted in a manner such that it excluded other communities, then it might've been discriminatory. Tomorrow, if the government chooses to, they can enact another legislation for the Rohingyas, and that too would be perfectly valid, even though it doesn't include other religions. This is therefore a question of policy, and not a question of constitutional or legal validity.
An example of the aforementioned analogy is if there was an act saying that only Hindus can get married, and if you don't complete the ‘saptapadi’, irrespective of your religion, then that would be an unfair legislation. But saying that the HMA covers only Hindus, Sikhs, Jains and Buddhists, does not mean it discriminates against Muslims. Separate Legislations thus can govern separate communities, as long as it is not violative of Article 14 or 15 of the Constitution.
Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, it is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. Hence its obligations in regard to refugees arise out of the latter. India has also voted affirmatively to adopt the Universal Declaration of Human Rights, which affirms rights for all persons, citizens and non- citizens a like.[15]
Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners. This is because there is no separate law to deal with ‘refugees’. For the same reason, cases for refugee ‘status’ are considered on a case-by-case basis. UNHCR often plays a complementary role to the efforts of the Government, particularly in regard to verification about the individual’s background and the general circumstances prevailing in the country of origin. That agency also plays an important role in the resettlement of refugees etc.
The CAA cannot be read with NRC as of yet, since there isn’t enough clarity on the latter. In Assam, one had to apply for inclusion. Whether or not will there be a similar option for a nationwide exercise, it's not yet clear. There's also no clarity on how documents will be processed for residents of different states, and what those documents will be, or if there will be a common set of guidelines for all of India.
As per the Assam model, an applicant had to pick any one of the documents under two heads — list A and list B. If a person is unable to procure the documents under List A, he/she can use the documents in list B to establish relationship with the ancestor. However, since it is not yet formulated on a nation-wide basis, making assumptions on the ramifications that could arise is premature.
References:
[1] Constituent Assembly Of India Debates (Proceedings) - Volume IX
[2] Law Commission of India, Report No.60, Law Commission of India, Report No.183
[3] Devadoss (dead) by L. Rs, v. Veera Makali Amman Koil Athalur, AIR 1998 SC 750.
[4] Prof. J.N. Saxena, "Legal Status of Refugees : Indian Position", Indian Journal of Int. Law, Vol. 26, No. 3 & 4, 1986, P.501.
[5] State of West Bengal Vs. Anwar Ali Sarkar (AIR 1952 SC 75)
[6] Ram Krishna Dalmia v. Justice S R Tendolkar, 1959 SCR 279
[7] Kartikeya Tanna, Citizenship Amendment Act is misunderstood; it gives persecuted minorities Indian citizenship, doesn't seek to expel Muslims, https://www.firstpost.com/india/misunderstood-citizenship-amendment-act-seeks-to-give-millions-of-persecuted-minorities-dignity-of-indian-citizenship-7777591.html (Last accessed on 18.12.2019)
[8] https://wb.gov.in/departments-details.aspx?id=D190305165850306&page=Land-and-Land-Reforms--Refugee-Relief-and-Rehabilitation ( Last accessed 17.12.2019)
[9] Tenzin Tsering, REFUGEE: Rights & Issue of Deportation under Indian Legal System https://sites.google.com/site/tibetanpoliticalreview/articles/refugeerightsissueofdeportationunderindianlegalsystem
[10] Hans Muller of Nurenburg v. Superintendent, Presidency, 1955 SCR (1)1284
[11] Mr. Louis De Raedt & Ors v. Union of India, 1991 SCR (3) 149
[12] Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919
[13] Report Of The Joint Committee On The Citizenship (Amendment) Bill, 2016 http://prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20(A)%20bill.pdf
[14] Ibid.
[15] India’s Refugee Policy, https://www.indianbarassociation.org/indias-refugee-policy/
