The Citizenship (Amendment) Bill (CAB), which will soon become law, will turn India into a ‘Hindutva Republic’, and in utter disregard to the secular tenets of our Constitution.
CAB simply means that if a Hindu from Pakistan, Bangladesh or Afghanistan comes to India to settle with his relatives or friends from whom he was separated in 1947 or later, he will be welcomed by being conferred an Indian citizenship; but the same will not be given to a Muslim from these countries.
Such a rule is a clear violation of the fundamental right to equality. Union Home Minister Amit Shah cleverly countered this point by saying that Muslims in these Islamic republics are not minorities and hence would not fall under the “reasonable classification” of persecuted ‘minorities’ of those Islamic nations. But Shah did not answer if a Muslim from these countries wanting to join his pre-1947 relatives or friends in India, will be a part of the minorities in the country.
Besides, the Bill doesn’t include all persecuted minorities of the neighbouring nations such as the Rohingyas of Myanmar and Tamils of Sri Lanka, and makes no mention of the persecuted Ahmadiyyas of Pakistan and the atheists in Bangladesh.
Article 14 of the Constitution accords equality to “any person” living within the territory of India, while Articles 15 and 16 assures equality to citizens. The CAB strikes at this basic level of equality among persons and does not allow some equally-footed persons to become citizens of India.
Constitutional foundation of citizenship
The Citizenship Act, 1955 gives a detailed process of conferring citizenship according to Articles 5 to 11 of the Indian Constitution. Article 5 says, at the commencement of this Constitution, every person who has his domicile in the territory of India and — (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
Article 6 gives the right of citizenship to people who have migrated to India from Pakistan, at the commencement of this Constitution, if he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 and in case where such person has so migrated before July 19, 1948 has been since ordinarily a resident in India, or where he migrated after that date, he was granted citizenship on his application before the commencement of the Constitution. Such person should have been resident of India at least six months immediately preceding date of application.
Article 7 says that a person who has after the first day of March 1947, migrated from India to Pakistan shall not be deemed a citizen of India.
Article 8 says any person who or either of whose parents or any of whose grandparents was born in India, and who is ordinarily residing outside India shall be deemed to be citizen of India, if he is registered as citizen by the diplomatic or consular representative of India in such country, on his application either before or after commencement of the Constitution.
Article 9 says any person who becomes citizen of other country, loses Indian citizenship by virtue of Article 5, 6 or 8.
Article 10 says every person who citizen of India shall continue to be so subject to provisions of any law that may be made by Parliament.
Article 11 says Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The NDA government invoked the power under Article 11 and amended the Citizenship Act, 1955.
The entire objective of the constitutional foundation of Indian citizenship codified in Articles 5 to 11 is to allow Indian citizens prior to 1947 to acquire citizenship of India even after Independence. It does not discriminate between Hindus and Muslims as far as their ‘personality’ is concerned.
The same objective based on the secular credentials of the Indian Republic has been breached by CAB.
The Citizenship (Amendment) Bill, which proposes to amend the Citizenship Act of 1955 and has been passed by both the Houses of Parliament, would confer Indian citizenship on Hindu, Jain, Buddhist, Sikhs, Parsi and Christian refugees coming from Afghanistan, Bangladesh, and Pakistan. The old Act specifies that illegal immigrants cannot get Indian citizenship. CAB proposes exceptions to this rule.
In 2015 too, the Centre made changes to the Passports Act and Foreigner’s Act to allow non-Muslim refugees from these countries to stay back in India even if they entered the country without valid papers.
The most significant aspect of CAB is that it excludes Muslims migrants from its purview. During the debate on the Bill in the Parliament, Shah said the Bill will protect minorities in Pakistan and Bangladesh who are being persecuted since Partition in 1947, by providing them Indian citizenship.
This change also relaxes the provisions for citizenship by naturalisation, i.e., the requirement of residence in India from 11 years to six years for these migrants.
Selective cancellation of OCI and perils of infiltration
There are new provisions for cancellation of registration of Overseas Citizenship of India(OCI) in the Bill – if registration is done through fraudulent means, if the citizen is sentenced to imprisonment for two or more years within five years of registration and for any violation of any law notified by the Centre among others.
Although the Bill gives the OCI holder an opportunity to be heard before the cancellation, it raises apprehensions about selective cancellation of citizenship.
Interestingly the Research and Analysis Wing (RAW) told the Joint Committee of Parliament that the Bill could be misused by foreign agents (from agencies like Pakistan’s intelligence agency ISI) to infiltrate India and that it could become a ‘legal framework’ which could be misused.
PRS Legislative Research, a research organisation also pointed out that the ability to notify any law and lack of clarity of these laws whose violation may result in OCI cancellation may amount to an excessive delegation of powers by the legislature and may give wide discretion to the government for cancellation of OCI.
The organisation also stated that the Bill provides differential treatment to illegal migrants on the basis of their country of origin, religion, date of entry into India, and place of residence in India (regarding exempted northeast India regions).
Reaction from US
The Bill also attracted opposition from the US Commission on International Religious Freedom (USCIRF) which called for sanctions against the home minister or other principal leaders over its passage. USCIRF cautioned, “In conjunction with the ongoing National Register of Citizens (NRC) process in Assam and nationwide NRC that the home minister seeks to propose, USCIRF fears that the Indian government is creating a religious test for Indian citizenship that would strip citizenship from millions of Muslims”.
The Union Ministry of External Affairs hit back by stating that neither CAB nor the National Register of Citizens (NRC) seeks to strip citizenship from any Indian citizen based on any faith. Pakistan’s Prime Minister Imran Khan too criticised the proposed citizenship law for violating bilateral agreements.
Within a few hours of the passage of Bill, the US House Foreign Affairs Committee (HFAC) tweeted saying, the Bill “undermines the most basic democratic tenet” of religious pluralism. The panel pointed out that any religious test for citizenship would be contrary to religious pluralism which was described as “one of our core shared values”. Responding to query of co-chair Democrat Brad Sherman about discrimination against Muslims on the issue of citizenship, assistant secretary for the Bureau of Democracy, Human Rights and Labour Robert Destro acknowledged that it gives a presumption of citizenship to some religious groups and leaves Muslims out. Sherman has reportedly commented, “Is this a serious legislative proposal or a just a crackpot idea going nowhere?” The senior US diplomat replied that it was indeed “a serious legislative proposal”. But he was hoping that Bill would not go through the Upper House.
The Northeast question
Meanwhile, protests across north-east India have gained momentum after the passage of the Bill in Parliament. Locals fear the influx of immigrants will disturb the demography of the region and increase the burden on resources apart from decreasing employment opportunities for indigenous people.
Moreover, it will nullify the provisions of the Assam Accord of 1985 which fixed March 24, 1971 as the cut-off date for deportation of all illegal immigrants irrespective of religion.
The pact does not discriminate immigrants on grounds of religion. While the secular nature of the pact had brought peace to the region, the same has been disturbed by the CAB.
The NDA government came up with CAB when its National Register of Citizens (NRC) didn’t prove conducive to its Hindutva agenda as the NRC detected more Bangladeshi Hindu migrants than Muslims in Assam.
The NRC exercise helps officers to eliminate Muslims from among Bangladeshi immigrants, against the letter and spirit of Assam Accord. And CAB strengthens the agenda as all non-Muslims from Pakistan and Bangladesh will simply get Indian citizenship after a six-year stay here. Muslims in these countries cannot claim to be minorities and they were not persecuted; hence they are not welcome as citizens of India.
“The presumption also is that since many Muslims chose to leave India in 1947, a remaining “Hindu” India has no obligation to take any back. Thus if Ahmadiyyas, Shias, or Baluchis continue to be persecuted in Pakistan, or Hazaras in Afghanistan and the Rohingya in Myanmar for example, as inauthentic, or non-Muslims, they too may not claim refugee status in India,” renowned author and academic Badri Raina wrote in his commentary on CAB.
Following severe protests and political opposition by north-eastern states, the Bill, however, has exempted the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth and Schedule to the Constitution from its applicability. These tribal areas include Karbi Anglong in Assam, Garo Hills in Meghalaya, Chakma district in Mizoram, and Tribal Areas district in Tripura. It also exempted the areas regulated through the Inner Line Permit which includes Arunachal Pradesh, Mizoram, Nagaland and Manipur. The opposition against the bill was the fear that the demography of Northeast India will change with the influx of migrants from Bangladesh.
Moving towards Akhand Bharat?
When Akhand Bharat (including Afghanistan, Pakistan and Bangladesh), is the ultimate target of Hindutva forces, does it mean it does not include Muslims in these three countries? When Muslims in India could be part of Akhand Bharat why are those from these three countries being excluded? Or are we going to send Muslims out of India into these Islamic republic nations to achieve Hindu Akhand Bharat?
There are two strong indicators: First, the NRC empowered the officers to eliminate them from the register of citizens. Second, the CAB does not allow Muslims from Akhand Bharat before Independence to become citizens, and in addition empowers the administrators to remove the citizenship on the grounds of violation of law.
If partition of India was purely on the ground of Religion, as criticised by Amit Shah, are we aiming to build Bharat and finally Akhand Bharat without Muslims? Does Akhand Bharat means mere union of territories without some of its people?
Are we attempting re-Constitution of India at 70th year of the Indian Constitution without its original values and structure or de-Constitution of India?
(The author is a former Central Information Commission and presently dean, (Law) Bennett University)