Wholly subordinated to the majoritarian nation

GS Paper II

Topic: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Prelims:

Mains: The Citizenship (Amendment) Bill (CAB), 2016

What’s the News?

On December 4, the Union Cabinet gave its go-ahead for the Citizenship Amendment Bill (CAB) to be tabled in Parliament this week.

Implications:

• This would possibly be the first piece of legislation that is perniciously discriminatory on the basis of religion/faith.
• This Bill violates Articles 14 and 15 of the Indian Constitution.
• It would therefore be brazenly against secularism — the basic structure of the Constitution.
• This Bill comes after the National Register of Citizens exercise conducted in Assam.
• The NRC has disenfranchised around 19 lakh (1.9 million) people as stateless non-citizens in Assam which was conducted under the supervision of the apex court.

National Register of Citizens (NRC)

• The National Register of Citizens (NRC) is meant to identify a bona fide citizen. In other words, by the order of the Supreme Court of India, NRC is being currently updated in Assam to detect Bangladeshi nationals who might have entered the State illegally after the midnight of March 24, 1971.
• The date was decided in the 1985 Assam Accord, which was signed between the then Prime Minister Rajiv Gandhi and the AASU.
• The NRC was first published after the 1951 Census in the independent India when parts of Assam went to the East Pakistan, now Bangladesh.

The Citizenship (Amendment) Bill (CAB), 2016:

• With this, the government plans to change the definition of illegal migrants. The Bill, introduced in the Lok Sabha on July 15, 2016, seeks to amend the Citizenship Act, 1955 to provide citizenship to illegal migrants, from Afghanistan, Bangladesh and Pakistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi or Christian extraction. However, the Act doesn’t have a provision for Muslim sects like Shias and Ahmediyas who also face persecution in Pakistan.
• The Bill also seeks to reduce the requirement of 11 years of continuous stay in the country to six years to obtain citizenship by naturalisation.

According to the Citizenship Act, 1955, an illegal immigrant is one who enters India without a valid passport or with forged documents or, a person who stays beyond the visa permit.

Principle of jus soli or jus sanguinis:

• After independence, the Constituent Assembly settled on the principle of jus soli or birth-based citizenship as opposed to the “racial citizenship” implied by the rival descent-based principle of jus sanguinis.
• A shift from soil to blood as the basis of citizenship began to occur from 1985 onwards.
• In 2004, an exception to birth-based citizenship was created for individuals born in India but having one parent who was an illegal migrant (impliedly Bangladeshi Muslim) at the time of their birth.
• The CAB and the NRC will only consolidate this shift to a jus sanguinis citizenship regime.

Need for the Bill:

• There are thousands of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis who have entered India after facing religious persecution in countries like Pakistan, Bangladesh and Afghanistan without any valid document.
• These refugees have been facing difficulty in getting Long Term Visa (LTV) or Citizenship.
• The existing Citizenship law does not allow anyone granting Indian nationality if he or she cannot show proof of documents on country of birth and therefore they have to stay at least 12 years in India.

Challenges and consequences of the Bill:

• It makes illegal migrants eligible for citizenship based on their religion and clearly violates Article 14 of the Constitution.
• The bill clearly violates the Assam Accord. Whatever one may think of it, the issue of the credibility of an accord signed by the Union of India is not entirely a trivial one. And it may have ramifications for future negotiations.
• Hostile towards one community: In both its intent and wording, the proposed amendment singles out a community for hostile treatment.

• The Bill carefully avoids the words ‘persecuted minorities’: but the Statement of Objects and Reasons says “many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religions” in three countries.
• A key argument against the CAB is that it will not extend to those persecuted in Myanmar and Sri Lanka, from where Rohingya Muslims and Tamils are staying in the country as refugees. Further, it fails to allow Shia and Ahmadiyya Muslims, who also face persecution, to apply for citizenship.

• Classification fails the main intent: It demonstrates the need for careful and meaningful categorisation, something that the main provisions fail to do. If protecting persecuted neighbourhood minorities is the objective, the classification may fail the test of constitutionality because of the exclusion of some countries and communities using religion.
• Based on political expediency: The exemption from the application of the CAB’s provisions in tribal areas in Assam, Meghalaya, Mizoram and Tripura, and the Inner Line Permit areas in Arunachal Pradesh, Nagaland and Mizoram, with Manipur to be added soon, is clearly based on political expediency. The bill has potentially interesting implications for asymmetric federalism. One of the proposals under consideration is to exempt the North-East States.

Way Forward

• Citizenship law amendment goes against non-discriminatory norms in the Constitution.
• The Citizenship (Amendment) Bill, 2019 (CAB), is brazenly discriminatory and it is only a matter of time before its constitutionality is subjected to severe judicial scrutiny.
• The government’s obstinacy in going ahead with it, despite opposition in Parliament, as well as from enlightened sections, is unfortunate.
• The central feature of the equal protection of the law envisaged in Article 14 is that the basis for classifying a group for a particular kind of treatment should bear a rational nexus with the overall objective.
• It would be a sad day for the republic if legislation that challenges its founding principles of equality and secularism is allowed to be passed.
• Instead of simply saying that members belonging to particular religions will be eligible for differential treatment, the bill should have laid down some general secular criteria (persecution history, history of migration etc.) which could, in principle, at least, be applied to all groups.