Authors: M. Hidayathulla B.A.LLB (H), DSNLU and Susmita Tripathy, B.A.LLB (H), DSNLU
INTRODUCTION
The recent legislations regarding Citizenship, namely – National Population Register, National Register of Citizens and Citizenship Amendment Act, have caused quite an upheaval in our nation which is a democratic republic and have brought the major amendments in the present Act with the intention to create differentiation among all religions – between Muslims and Hindus.
The National Population Register (NPR) is the Register of the usual residents who are citizens or non-citizens of the country and it contains the information that he/she has resided for the past six months or intends to reside for the next six months in the locality. It is mandatory for every usual resident of India to register in the NPR but states like West Bengal, Kerala, Rajasthan, Madhya Pradesh, Chhattisgarh, Jharkhand, Telangana and Maharashtra have opposed the process of NRC and CAA as it created controversy among religions.
The purpose to bring National Population Register (NPR) is to build a comprehensive identity database of every resident of the country and it would contain demographic as well as biometric particulars such as name of the person, relationship to the head of the household, father’s name, mother’s name, their occupation etc.
The present status of data for National Population Register (NPR) was collected in 2010 along with the census of India 2011. In 2015, the data was updated by conducting door to door survey. Now it has been decided to update the NPR along with the house-listing phase of census 2021 during April to September, 2020 in all the States and Union Territories of India except the state of Assam and further, a Gazette notification has been published by the Central Government[1] according to the Citizenship Rules of 2003.
The Rules specify the process by which National Register of Indian citizens will be conducted. Rule 4 of the Citizenship Rules of 2003 says the first step of the National Register of Indian Citizens will be door to door collection of information in every locality to make a population register. The Local Registers shall then be combined to form a Sub-District, then to District, then to State and then to a National Population Register.
The 2003 Amendment of the Principal Act (Citizenship Act, 1955) manadates mentioning of names of all Indian citizens in the National Register of Citizens. Section 14-A in the 2003 Amendment Act empowers the Central Government to make a National Register to keep Record of the citizens of India and to provide National Identity Cards to all its citizens.
The NRC was first devised for the whole country in 1951 to identify the illegal immigrants residing in the newly independent India. Since then, the NRC has not been updated, until recently. NRC came to light after the Supreme Court of India passed an order[2] in 2013 to begin updating process in the State of Assam. In December 2019, the Government of India brought the CAA into force and started updation of NRC nation-wide.
According to Rule 4(3) of the Citizenship Rules, the NRC or NRIC will be first prepared at the local level by a Local Register. The Local Register will collect the information of every family and every individual who is residing in the particular residence and record the same in the Local Population Register and further, a category of ‘Doubtful Citizen’ shall be made. Whoever is unable to prove their citizenship will be considered as Doubtful Citizen. Later, these doubtful citizen will be asked to prove their citizenship.
The Amendment in the Citizenship Act has been challenged nationwide. The questions raised by the people are met with denial, deflection and deceptive statements. The present Government defends the Act stating that that NPR and CAA have nothing to do with NRC. But, by careful reading of the Citizenship Act and the rules mentioned in the said Act reveal the truth.
The Acquisition, Determination and Termination of Indian Citizenship was provided by the Citizenship Act, 1955. It has been amended many times in the past; and the latest Amendment was passed on the 11th of December, 2019. The said Act enables migrants/foreigners of six minority (Hindu, Sikh, Buddhist, Jain, Parsi or Christian) communities from Afghanistan, Pakistan and Bangladesh who has come to India by persecution on religious grounds from the said countries can apply for Indian Citizenship. The persecuted minorities have to apply for citizenship by fulfilling the minimum legal requirements. It is also said in the Act that those who had entered into India on or before the 31st December, 2014 will not be treated as an illegal migrant. The major controversy that arose following the paasing of the Citizenship Amendment Act, 2019 was that – it did excluded Muslims and other minority groups which is per se a violation of the provisions of the Indian Constitution. The Amendment brought by the Central Government will shield only the non-Muslims and other minority groups who are de facto illegal immigrants while making a large number of Muslims and other minority groups stateless with an uncertain future.
THE PURPOSE OF THE AMENDMENT OF CITIZENSHIP ACT PROVIDED BY THE CENTRAL GOVERNMENT
The Objectives and Reasons mentioned in the Amendment Bill by the Parliament which are in violation of the Constitutional Provisions are as mentioned below:
- It is mentioned in the Citizenship Amendment Bill, 2019, that it is a historical fact that the border migration has been happening continuously between the territories of India and the areas presently comprised in Afghanistan, Pakistan and Bangladesh. When India was partitioned the citizens of undivided India belonging to various faiths were staying in the said areas.
- The Constitutions of Afghanistan, Pakistan and Bangladesh provide for a specific State Religion. It is mentioned in the Bill that many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities have faced persecution on grounds of religion in those countries.
- The specific persons who are persecuted from Afghanistan, Pakistan and Bangladesh have to apply for Indian Citizenship under Section 5 or Section 6 of the Amended Act. The Government also made them eligible for long term visa to stay in India. To get Indian Citizenship under the said Act, they have to fulfill the conditions and requirements and would be granted with a certification of Naturalization.
- The said minority groups in the Act have to establish the residence in India for five years instead of eleven years to get Naturalization certificate. If whosoever violates the provisions of the Act, then their Overseas Citizen of India (OCI) card would be cancelled.
It is a fact that not only Hindu, Sikh, Buddist, Jain, Parsi and Christian are being persecuted; there are people who belong to other Minority Groups and even Muslims also being persecuted from Afghanistan, Pakistan and Bangladesh. Minority Groups like Ahmedias and Shias from Pakistan, Tamilians from Sri Lanka, Christians from Bhutan, Rohingya Muslims from Myanmar, Jews, Bahais and other Minorities also being persecuted but these people are not included in the Amendment Act. Prior to the amendment, migrants had to prove that they were residence for 11 years in India to be naturalized as a citizen and now the Amendment Act says that the people should reside at least 5 years to be naturalized as a citizen.
India is a secular country and a place for all religions. Constitution is the supreme law of land and no one can go against the provisions/principles of the Constitution. Though Pakistan, Afghanistan and Bangladesh are Muslim majority countries, Indian Government cannot reject the citizenship of the Muslims and other minority groups of the said countries. The disqualification of the Muslims and other minority groups is betrayal of our Republic because it is founded on the principles of Justice, Equity and Good Conscience/and on the Principles of Liberty.
THE ASSAM ACCORD
In 1951, the National Register of Citizens (NRC) for Indian citizens was firstly created. The permission was also granted to create National Register of Citizens (NRC’s) to the states of Manipur and Tripura but it never came into effect.
The list was created to find the people who lived in India on January 26, 1950, or they would have born in India or they had parents who were born in India or they would have been living in India for at least five years before January 26, 1950.[3] The Supreme Court of India issued an Order in 2013 to update the Register with the state’s that nearly 33 million people have to prove their citizenship prior to March 24, 1971.
Whoever does not find their names in the list they have the option to present themselves before the Foreigner Tribunal. The further Appealing option also given to the people whose name is not included in the list, they can go for appeal from Foreigner Tribunal to High Court, then High Court to Supreme Court.
The National Register of Citizens (NRC) procedure has done for more than 5 years and the final list was published on 31st of August, 2019 and nearly 2 million applicants were excluded from the final list. The excluded persons from the list are more Hindus than Muslims and other minority groups and in order to bail out the Hindus the NRC process was made nationwide.
In the Sarbananda Sonowal v. Union of India[4] case, the Supreme Court comprising of three-judge bench declared the Illegal Migrants (Determination by Tribunals Act), 1983 (IMDT Act) and its corresponding rules, as unconstitutional which also dealt with Illegal Immigration in Assam. The petitioner is the Chief Minister of Assam and the former President of many Organizations from Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh, and also, an active member involved in issues relating to the rights of the people of Assam including Illegal Migrants who were settled in the State of Assam.
In this case, the Petitioner contended that the IMDT Act was wholly arbitrary and unreasonable, also contended that it is discrimination against the citizens residing in Assam. It is impossible to detect and deport foreigners from India. He also argued that, while Foreigners Act, 1946 is applied to all Foreigners throughout India, the IMDT Act, which was enacted subsequently aiming to detect and deport of illegal migrants in Assam and it had failed to meet even the standards prescribed in the Foreigners Act. The Supreme Court looked into Article 355 of the Constitution to strike down the IMDT Act and created a burden on the individual that he/she has to prove that he/she was a foreigner to rebut the allegation against him.
In Sarbananda Sonowal (II) v. Union of India, the Supreme Court comprising of 2 Judge Bench struck down the Foreigners (Tribunals) Amendment Order, 1964, as unnecessary and unreasonable. It found that the 1964 Order was in violation of Article 14 of the Indian Constitution. The Central Government claimed that Article 21 of the Constitution was applicable to a person who had already come to India and he/she would get the claim compliance of the Principles of Natural Justice.
The issue was whether to grant the Citizenship purely by Birth and not by descent. The Acquisition of Citizenship by Birth in case of every person born in India on or after January 26, 1950, but before July 1, 1987 is given in Section 3 (1) (a) of the Citizenship Act, 1955. The purpose and effect of this provision was pending before the Constitutional Bench and the issues were also awaiting for consideration are
- Whether the expression “every person born in India” would apply only to persons born to Indian Citizens and
- Whether the expression “either of whose parents is a citizen of India at the time of his birth” in Section 3 (1) (b) of the Citizenship Act, 1955, would apply to only a person who is born to Parents one of whom is a Citizen and the other a Foreigner, provided that he/she stay in India is not in contravention of applicable Indian laws.
According to the Section 6(A) of the Citizenship Act introduced in the Amendment in 1985 following the Assam Accord and the classified Illegal Migrants who entered Assam from Bangladesh into three groups:
- The first group who entered the State before 1966 and also granted with Citizenship.
- The second group who entered the State between 1966 and March 25, 1971, and also granted with citizenship after 10 years of completion of Residence.
- The third group who entered after 1971, and was to be detected and expelled in accordance with the Law.
The Section 6 (A) was challenged before the Supreme Court. The pending resolution before the Constitutional Bench was to determine the validity of the Section 3 of the Act. If two of the provisions will declare as unconstitutional by the Constitutional bench, the NRC list would become as constitutional which was prepared on the assumption subject to changes by aggrieved citizens.
CONSTITUTIONAL ASPECT OF CITIZENSHIP AMENDMENT ACT, 2019 –
DOES CAA SATISFY THE TEST OF REASONABLE DIFFERENTIATION UNDER ARTICLE 14?
Object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in preamble of the Constitution of India.[5] Equality is a basic feature of the constitution and thus, any treatment of equals unequally or elsewise will amount to violation of basic structure of the constitution.[6] It gives equal Civil and Citizenship Rights as enjoyed by any other citizen of India. Amendment of CAA offends right to equality and thus, should be declared as invalid. Neither Parliament nor any state legislature can transgress the principle of equality.[7]
Article 14 of Indian Constitution permits classification. To pass this test, two conditions must be fulfilled. One, that the classification must be a reasonable classification i.e., founded on an intelligible differentia that would distinguish those migrants grouped together from the rest of others and that, this differentia must have a rational nexus with the purpose sought to be achieved by the legislation passed. Differentia which is the basis of classification and the object of the Act are two distinct things and what is necessary is that there must be a nexus[8] between them.[9] This legislation is more of a class legislation than classification. Right to such equality cannot be arbitrarily denied to equals in the absence of a valid classification.[10]
Art 14 enjoins equal protection to all persons in enjoyment of their rights and liberties without discrimination or favouritism. Our Constitution confers certain rights on every human being, whether citizen or not. [11] Article 14 bars discrimination and prohibits discriminatory Laws. Article 14 read in light of Preamble reflect thinking of our Constitution makers and prevent discrimination based on religion or origin in matter of equal treatment.[12] Thus, being inherently discriminatory should be either amended by including the excluded religion or completely repealed.
Classification must not be arbitrary[13]. There should be substantial basis for classification. Mere differential treatment, having inconsistency with the purpose of the legislation is arbitrary, does not rest on any rational basis[14]. The underlying purpose of Article 14 is to treat all persons similarly circumstanced alike, both in privileges conferred and liabilities in force.[15]
CAA AS ANTI – NATIONALISTIC BY BEING NON – SECULAR
Preamble to the Indian Constitution also talks about political justice and equality of status and opportunity and promoting fraternity amongst all. It also says that we, the people of India, give to ourselves this constitution to preserve the unity and integrity of our nation. This is the form of nationalism we recognize in our Constitution and in daily practice. Any Legislation abroad getting this sentiment cannot be said to be Nationalistic, thus CAA is not Nationalistic.
The Proviso to Section 21 be read with Section 6 (B) of Citizenship Act, 1955 does not deprive anyone of his citizenship on his own but it is acting arbitrarily by operating independently by denying existing citizen of his citizenship by allowing expedious grant of citizenship (from initial 11 years to now mere 5 years) through Registration on Naturalization under Section 6 (B) of Citizenship Act, 1955. Citizenship Act operates discriminately by not allowing only one particular religion and discriminating against them from getting a Citizenship in India.
The said differentiation is not only discriminatory but also anti-secular. Our constitution never attempted classification on grounds of religion.[16] Nor does it deny nor does it allow. During the partition of India and Pakistan the choice was given to the people to choose where in which country they wanted to be a citizen of and also during the Migration from India to Pakistan in 1947 and thereafter return in 1948 and acquire Citizenship on their return was also granted under the Article 7 of Citizenship Act, 1955. So, this shows the spirit behind the current of citizenship under the constitution which is keeping the religion apart. Also, section 6 and 7 of the Citizenship Act never mentioned any religion bias.
Citizenship Act is basically giving special route to acquire Citizenship of India to the otherwise Illegal Immigrants is they have come before 2014 except the Muslims will never get this benefit under the same special process. By this CAA is arbitrarily is assuming that members of Muslim community can never be the target of any fanaticism or prosecution in Pakistan/Bangladesh /Afghanistan just because they are Muslim majority countries. These are the very countries where the Hazaras-Shias and Ahmediyas are being religiously persecuted. The proof of such communal divide can be seen in the case for the demand of separate state of Balochistan in Pakistan. Also it is assumed that Hindus from countries other than these three countries can never be prosecuted for example Sri Lanka the Tamils persecuted in here is the best example.
CAA is selectively allowing certain set of illegal migrants by filtering out another set of illegal migrants. Section 2 (1) (b) defines an illegal migrant as a person who without proper documentation enters territories of India. Section 2 (1) (h) of the Citizenship Act defines “undivided India” that excludes Afghanistan [as per Section 311 of Government of India Act, 1935]. So even if CAA is associated with the religious persecution caused due to the partition there is no connection to Afghanistan as to why it was excluded from the ambit of the act. Section 5 Explanation 2 states that a person is said to be person of Indian origin if either parent born in undivided India which does not specify any religion bias. So even if CAA is associated with the religious persecution caused due to the partition there is no connection to Afghanistan as to why it was excluded from the ambit of the act.
Section 5 and 6 says Registration and Naturalization available to foreigners but not to Illegal Migrants. Foreigners Act, 1949 and Passport Act, 1920 does not allow entry into sovereign territories of India without valid Passport. Which is why the highly disputed case of Sarbanand Sonowal (I)[17] wanted the inclusion of Foreigner’s Act in the highly disputed act of IMDT which they later enforced by repealing the same and pushing up for Assam Accord.
Even when was say citizenship is given under genuine humanitarian grounds of Indian government to this persecuted minorities it creates a definite distinction between how persecution is different for people in these listed three countries in the Act and the other countries in the world and it is showing how persecution of Hindustan Sri Lanka is lesser than the situation of Hindus in countries and this distinction is arbitrarily made and assumed which has no nexus with the practical scenario.
And now the aftermath of the implementation of the earth would cause further problems. Since these people who got the citizenship now in speedier form so they don’t need to prove anything since because due to the concept of fiction of Law they are now legal citizens they are no more illegal so they don’t have to prove anything.
VIOLATION OF INTERNATIONAL LAW CONVENTIONS AND OBLIGATIONS AND SUBSEQUENT NEED FOR DOMESTIC REFUGEE LAW
Principles of 14 and 21 are International obligations must apply to all the persons. Unreasonable discrimination between similarly placed illegal migrants who have faced religious persecution. Thus the persecution suffered by a Shia/Ahmedi is no different from persecution suffered by other religion, sometimes its worse. Pakistan has officially unrecognized Ahmedis as Muslims.
In the case of NHRC v. State of Arunachal Pradesh[18], where the Chakma tribals (coming from Erstwhile East Pakistan-now Bangladesh) of Arunachal Pradesh were facing persecution from fellow citizens of the state, their right to life and personal liberty was upheld. They were resettled through procedure and also their application for citizenship under section 5 (1) (c) was accepted by the local authorities. Similarly, the above mentioned ethno-religious groups cannot be excluded from the benefit of the Act.
Lord Diplock in Solomon v. Commissioner of Customs and Excise[19], in situation where Parliament passes legislation to implement an international treaty, courts are to apply the presumption of Parliament intending to fulfill its International Obligations. Whereas here, the CAA violates the following international obligations- UDHR Article 2, 3, 7, 14; ICCPR Article 2(1), 6(1), 26, 4(1). Also, there are violations of ICESR, CEDAW, etc. the conventions to which India is a signatory if not obliged by Refugee Convention. OHCHR has recently sought to intervene and has filed an intervening application asking for it be allowed to act as an Amicus Curiae in the 150+ CAA petitions filed before the Supreme Court of India which was brushed aside by the MEA stating CAA to be domestic affair which need to be interfered by foreign entities.
CONCLUSION
A Republic is founded on the principles of Justice, Equality and Liberty, barring which the state loses its essence. Article 7 of Universal declaration of Human Rights, 1948 declares all are equal before law and are entitled without any discrimination to equal protection of laws while Article 14 and 21 of the Indian Constitution apply to all, not just Indian citizens. Article 21 applies to persons, i.e., to non-citizens as well.[20]
If discrimination is writ large on the face of the legislation, the onus shifts to the state to sustain the validity of the legislation in question.[21] Thus the Centre has to come up with a good reasoning as to why it sought to pass such an inherently discriminatory act.
Shaheen Bagh, an area in New Delhi became epicentre for the anti-CAA, NRC protests. Large no. of Muslim women and children gathered on an indefinite Dharna from Dec, 2019 to March, 2020. Following emerge of the COVID pandemic, the lane had to be forcibly emptied by the Delhi Police, thus putting an end to all anti-CAA protests. Notwithstanding which it cannot be denied that, a robust national asylum system is the need of the hour.
[1] http://censusindia.gov.in/2011-Common/IntroductionToNpr.html.
[2] Sarbananda Sonowal (I) v. Union of India, AIR 2005 SC 2920.
[3] https://www.business-standard.com/about/what-is-nrc.
[4] Supra note 2.
[5] M P Jain, Indian Constitutional Law, Lexis Nexis, pg 1258.
[6] M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260.
[7] Kesavanand Bharti v. state of Kerala, AIR 1973 SC 1461; Indira Sawhney v. UOI, AIR 2000 SC 498.
[8] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
[9] Re special courts bill, air 1979 1 SC 478, https://m. hindustantimes.com/india-news/proviso-in-amended-citizenship-legislation-is-unconstitutional-justice-madan-lokur/story.html.
[10] Virendra Krishna Mishra v. UOI, 2015 2 SCC 712.
[11] Faridabad CT scan centre v. DG Health Services, AIR 1997 SC 3801, Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988.
[12]M P Jain, Indian Constitutional Law, Lexis Nexis, pg 1260.
[13] E P Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Maneka Gandhi v. UOI, 1978 AIR 597.
[14] K thimmappa v chairman, central board of directors, AIR 2001 SC 467.
[15] John vallamattom Vs uoi, 2003 6 SCC 611, subramanian Swamy Vs CBI, 2014 8 SCC 682.
[16] livelaw.in/column/is-caa-nationalistic-15-32-33.
[17] Supra note 2.
[18] NHRC v. State of Arunachal Pradesh, 1996 1 SCC 742.
[19] Solomon v. Commissioner of Customs and Excise, 1996 3 All ER 871.
[20] Anwar v. State of Jammu and Kashmir, 1971 3 SCC 104.
[21] Dalmia v. Tendolkar, AIR 1958 SC 538, Jagish Pandey , State of J And K V. T.N. Khosa.