An attack on the republic

GS Paper II

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

Prelims:

Mains: analyse the provisions of the citizenship amendment act

What’s the News?

• The Parliament has passed the Citizenship (Amendment) Bill (CAB), 2019 which seeks to grant Indian Citizenship to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have migrated to India after facing persecution on grounds of religion in Pakistan, Afghanistan and Bangladesh.
• It basically intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.

Background:

• After a charged debate, the Constituent Assembly settled for a “jus soli” approach to citizenship. The first Home Minister of India and a key contributor to the debates, Sardar Patel, while arguing for a broad based, non-discriminatory criterion for citizenship, said “There are two ideas about nationality in the modern world, one is broad-based nationality and the other is narrow nationality. It is not right for us to take a narrow view.”
• Even after being witness to the horrors of Partition, the framers of our Constitution did not budge in favour of religion-based criteria.
• After the Constitution was enacted, Patel again appreciated the framers for adopting an “enlightened modern civilised” approach to citizenship while stating the ethnicity-based citizenship as outdated.
• Unfortunately, the duo from Gujarat who swears by Patel is destroying the vision of the Constitution.

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.

Arguments against the Bill:

• The fundamental criticism of the Bill has been that it specifically targets Muslims. Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality) and the principle of secularism.
• India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
• Despite exemption granted to some regions in the Northeastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties in the states.
• It will be difficult for the government to differentiate between illegal migrants and those persecuted.

Arguments in Favor:

• The government has clarified that Pakistan, Afghanistan and Bangladesh are Islamic republics where Muslims are in majority hence they cannot be treated as persecuted minorities. It has assured that the government will examine the application from any other community on a case to case basis.
• This Bill will come as a big boon to all those people who have been the victims of Partition and the subsequent conversion of the three countries into theocratic Islamic republics.
• Citing partition between India and Pakistan on religious lines in 1947, the government has argued that millions of citizens of undivided India belonging to various faiths were staying in Pakistan and Bangladesh from 1947.
• The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.
• Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.
• After Independence, not once but twice, India conceded that the minorities in its neighbourhood is its responsibility. First, immediately after Partition and again during the Indira-Mujib Pact in 1972 when India had agreed to absorb over 1.2 million refugees. It is a historical fact that on both occasions, it was only the Hindus, Sikhs, Buddhists and Christians who had come over to Indian side.

Conclusion:

• The chief opposition to the Citizenship (Amendment) Bill is that it discriminates on the basis of religion by identifying only non-Muslims refugees as those who would be eligible for Indian citizenship.
• While any foreigner can still apply for Indian citizenship, he/she has to follow the normal process of naturalisation – which takes 11 or more years.
• The CAB is seen by many as a quick move to change the demographics and voters-profile in favour of the ruling party by selective admission of illegal migrants.
• As per the critics, Citizenship (Amendment) Bill violates Article 14 of the Indian Constitution – the fundamental right which guarantees equality to all persons. This is part of the basic structure of the Constitution and hence cannot be reshaped by any Parliament laws.
• It is yet to be seen if the Supreme Court allows the selective fast-tracking for Indian Citizenship. The apex court has power even to declare the bill as unconstitutional.
• The policy towards illegal migrants and refugees needs wider debates and deliberation. However, religion can never be the basis of Indian Citizenship.

The principle of equality before law, irrespective of one’s religion, race, sexuality and gender, is a necessary precondition for the functioning of a just society. Making religion a criterion for offering citizenship and excluding one religion from it is an insult to the legacy of this country’s freedom struggle, a fraud on our constitution and most importantly, a nefarious attempt to institutionally otherise Muslims and plunge them into precarity and fear.