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Determination Of Citizenship On The Basis Of Religion In Secular India

In today’s time when we talk about someone’s legal status regarding his rights, we talk about citizenship as it has a major role to play. The concept of rights is there for a long era of civilisation but some rights have been bifurcated by the time as development has been done in the laws too. It has been made that some rights are granted or empowered to someone only if the person is a citizen of a country. Otherwise, the person who is not a citizen of the country is derived from such rights.

Citizenship itself is a big issue in the current times as there are some set of principles laid down and citizenship can only be accessed as per those rules. There are some issues also which comes into the scenario when there is an application of some principles laid down by any convention or treaty or when such application is not universal and a country that is not part of such convention has its own stand in determining citizenship in such cases.

Research Methodology
The research method so used to write this research work is doctrinal. Doctrinal in the sense as it comes from the credible sources herein, the sources like the articles published in renowned and justified web pages and journal. The project also uses explanatory reasoning for research. The source of information also consists of the theoretical knowledge the researcher possess as a student of law.

The research is directed towards the Determination of Citizenship on The Basis of Religion in Secular India. The data so used is qualitative, as in the form of established theory and criticism. The data is extracted from Journals, articles and websites. The sources so used are secondary in nature.

Citizenship in India
The statute in India regulates that who may acquire Indian citizenship and on what grounds is the Citizenship Act, 1955. If we have a bare reading of Part II of the Constitution of India which talks about citizenship, we can come to know that:
person may become an Indian citizen if they are born in India or have Indian parentage or have resided in the country for a period of time, etc.[1] However, illegal migrants are prohibited from acquiring Indian citizenship. An illegal migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted time period.[2]

Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. The central government is empowered to regulate the entry; exit and residence of foreigners within India, under these Acts of 1946 and 1920. Two notifications were also issued in the year 2015 and 2016 by the central government which exempted certain groups of illegal migrants from provisions of the aforementioned Acts.

Those people who arrived in India on or before December 31, 2014, belonging to any of these groups which are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, are exempted by the notification of 2015 and 2016. Earlier these groups of illegal migrants would have been deported or imprisoned for being present in India without having any valid documents that allow or grants permission to stay within India, but by this notification, they are permitted to stay within the territory of India.

Determining Citizenship on The Basis of Religion in Indian
India is a secular country and same has been enshrined under the constitutional provisions as its fundamental character. In spite of having the secular character of the State of India, the questions that arises before us is that how the present government thinks of determining citizenship on the basis of religion by making a constitutional amendment for the same. The reason as to why it is possible for India to determine citizenship via any constitutional amendment is due to earlier decisions of Union Government that they did not signed up for being part of the Refugee Convention, 1951, and nor of its protocol of 1967.

These conventions came into existence during the prime ministerial tenures of Jawaharlal Nehru and Indira Gandhi respectively. The principles of non-refoulment[3] and impediment to expulsion are not applicable or binding upon India, thus they can deny or restrict such entry or presence of people who by any means do not have citizenship of India.

Under the two aforementioned instruments, the legal status of the refugees is defined. These instruments were signed by 136 member states of the United Nations, among which India is not one of the signatories. The everyday life of the refugees which includes ensuring their right to work, education, public assistance and access to court was eased by establishment of the convention and its protocol. As they are not in the position to use their own national passport, it further included ensuring the social security and right to travel documents.

Through the Economic and Social Council Resolution 526 (XVII), the convention related to the status of stateless persons[4] was adopted in 1954. Similar to what is stated under Part II of Constitution of India, the terms of the convention means, nationality should be granted by a nation to all people within its territory either on birth, or operation of law or upon an application being lodged with an appropriate authority.

It is further provided under the convention that nationality shall be acquired by a child born in wedlock in the territory where mother of the child has the nationality of the same state. In cases of loss of nationality, the loss must be conditional one till the time the person acquires nationality of another state, if it is due to change of personal status, such as marriage, termination of marriage, legitimization, recognition or adoption.

It is considered to be a global step to regulate and eliminate statelessness, to which India refused to be part of it. As India is not part of the convention and protocol it is not legally bound to comply by the terms and condition that are laid down in these instruments. It is the case with India that it is neither part of such convention nor it has enacted any domestic legislation relating to the issue of stateless person or refugees.

In fact the scenario of India clearly shows that it has been struggling with the issue of huge influx of refugees and may continue afterwards also from almost all of its neighbouring countries. It is also struggling with the issues of statelessness. It is not clear that what should be the legal status of those people as there is no relevant law present that could help or guide the authorities that what should be the status of these people. It is also the reason as to why there is lack of clarity while determining the same as steps to identify them have not been properly defined under applicable relevant statues.

Till this day no government has yet taken any step in this direction to form legislation on refugees and stateless, if it has been made that could have had a far-reaching effect. Perhaps it is so because there is widespread ignorance of the problems faced by the refugees and the stateless or/and because of the lack of sympathy for them, as they are more often than not perceived as an undesirable lot that fled their own country for the betterment of their social and economic life.

Under Part III of The Indian Constitution, along with other rights it also provides equality before law[5], protection in respect of conviction[6], protection of life and personal liberty[7] and protection against arbitrary arrest[8]. These rights are available to ‘all persons’ within the ‘territory of India’ and consequently should also be available to the refugees or stateless or anyone within the territory of India.

Comparison of the Citizenship (Amendment) Bill, 2016, as passed by Lok Sabha, with the Citizenship (Amendment) Bill, 2019
In 2016, a Bill was introduced to amend the Citizenship Act, 1955.[9] The Bill sought to make illegal migrants belonging to these six religions and three countries eligible for citizenship and made some changes in the provisions on registration of Overseas Citizens of India (OCI) cardholders.

It was referred to a Joint Parliamentary Committee, which submitted its report on January 7, 2019.[10] The Bill was passed by Lok Sabha on January 8, 2019.[11] However, it lapsed with the dissolution of the 16th Lok Sabha. Subsequently, the Citizenship (Amendment) Bill, 2019 is being introduced in Lok Sabha in December 2019.

The 2019 Bill seeks to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. It exempts certain areas in the North-East from this provision. The Bill also makes amendments to provisions related to OCI cardholders.

A foreigner may register as an OCI under the 1955 Act if they are of Indian origin (e.g., former citizen of India or their descendants) or the spouse of a person of Indian origin. This will entitle them to benefits such as the right to travel to India, and to work and study in the country. The Bill amends the Act to allow cancellation of OCI registration if the person has violated any law notified by the central government. Given below is the comparison of the provisions of the 2016 Bill (as passed by Lok Sabha) with that of the 2019 Bill.

The Citizenship (Amendment) Bill, 2016 (as passed by Lok Sabha) – Eligibility for citizenship for certain illegal migrants: The Act prohibits illegal migrants from acquiring Indian citizenship. Illegal migrants are foreigners who enter India without a valid passport or travel document, or stay beyond the permitted time.

The Bill amended the Act to provide that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants. In order to get this benefit, they must have also been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government. The 1920 Act mandates foreigners to carry passport, while the1946 Act regulates the entry and departure of foreigners in India. The Bill further stated from the date of its enactment, all legal proceedings pending against such an illegal migrant will be closed.

In case of citizenship by naturalisation: The Act of 2019 allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years. The Bill created an exception for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, with regard to this qualification[12]. For these groups of persons, the 11 years’ requirement will be reduced to six years[13].

Grounds for cancelling OCI registration: The Act provides that the central government may cancel registration of OCIs on five grounds including registration through fraud, showing disaffection to the Constitution, engaging with the enemy during war, necessity in the interest of sovereignty of India, security of state or public interest, or if within five years of registration the OCI has been sentenced to imprisonment for two years or more. The Bill added one more ground for cancelling registration, that is, if the OCI has violated any law that is in force in the country. When the Bill was passed in Lok Sabha, this was amended to limit the disqualification to violations of the Citizenship Act or of any other law so notified by the central government. Also, the cardholder has to be given an opportunity to be heard.

Citizenship (Amendment) Bill 2019:

The Bill adds two additional provisions on citizenship to illegal migrants belonging to these religions from the three countries. Consequences of acquiring citizenship: The Bill says that on acquiring citizenship:
  1. such persons shall be deemed to be citizens of India from the date of their entry into India, and
  2. all legal proceedings against them in respect of their illegal migration or citizenship will be closed.
There is further an exception, the Bill adds that the provisions on citizenship for illegal migrants will not apply to the tribal areas of Assam, Meghalaya, Mizoram, or Tripura, as included in the Sixth Schedule to the Constitution. These tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.

It will also not apply to the areas under the Inner Line, under the Bengal Eastern Frontier Regulation, 1873. The Inner Line Permit regulates visit of Indians to Arunachal Pradesh, Mizoram and Nagaland.

The Bill further reduces the period of naturalisation for such group of persons from six years to five years. Grounds for cancelling OCI registration are same as the 2016 Bill passed by Lok Sabha.

Differentiating on grounds of religion is a Violation of Article 14 or not

The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act. The conditions are:
  1. they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians
  2. they are from Afghanistan, Bangladesh or Pakistan;
  3. they entered India on or before December 31, 2014;
  4. they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the Inner Line permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.[14]
Article 14 guarantees equality to all persons, including citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose[15].

The question is whether this provision violates the right to equality under Article 14 of the Constitution as it provides differential treatment to illegal migrants on the basis of:
  1. their country of origin
  2. religion,
  3. date of entry into India, and
  4.  place of residence in India.

Below this we examine whether these differentiating factors could serve a reasonable purpose.

First, the Bill classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh. The Statement of Objects and Reasons in the Bill (SoR) states that India has had historic migration of people with Afghanistan, Pakistan and Bangladesh, and these countries have a state religion, which has resulted in religious persecution of minority groups.

While the SoR reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, no reason has been provided to explain the inclusion of Afghanistan.
Further, it is not clear why migrants from these countries are differentiated from migrants from other neighbouring countries such as Sri Lanka (Buddhist state religion)[16] and Myanmar (primacy to Buddhism)[17]. Sri Lanka has had a history of persecution of a linguistic minority in the country, the Tamil Eelams.

It is estimated that there are over a lakh Sri Lankan refugees in India, two-thirds of them in government camps[18]. Similarly, India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims. Over the years, there have been reports of both Tamil Eelams and Rohingya Muslims fleeing persecution from their respective countries and seeking refuge in India[19].

Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to religious minorities from these countries have been excluded from the Bill.

Second, with respect to classification based on religious persecution of certain minorities in Pakistan, Afghanistan and Bangladesh, it may be argued that there are other religious minorities in these countries, who face religious persecution and may have illegally migrated to India.

For example:
over the years, there have been reports of persecution of Ahmadiyya Muslims in Pakistan (who are considered non-Muslims in that country)[20], and the murder of atheists in Bangladesh. It is unclear why illegal migrants from only six specified religious minorities have been included in the Bill.

Third, it is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.
Fourth, the Bill also excludes illegal migrants residing in areas covered by the Sixth Schedule, that is, notified tribal areas in Assam, Meghalaya, Mizoram and Tripura.

The purpose behind the enactment of the Sixth Schedule of the Constitution was to aid in the development of tribal areas through autonomous councils, while protecting the indigenous population in these areas from exploitation and preserving their distinct social customs. The Bill also excludes the Inner Line Permit areas. Inner Line regulates the entry of persons, including Indian citizens, into Arunachal Pradesh, Mizoram and Nagaland[21].

Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are applicable to other Indian citizens. Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas.

Wide discretion to government to cancel OCI registration

The 1955 Act provides that the central government may cancel the registration of OCIs on various grounds. The Bill adds one more ground for cancelling registration, that is, if the OCI has violated any law notified by the central government. It further states that orders for cancellation of OCI should not be passed till the cardholder is given an opportunity to be heard.

It may be argued that giving the central government the power to prescribe the list of laws whose violation result in cancellation of OCI registration, may amount to an excessive delegation of powers by the legislature. The Supreme Court has held that while delegating powers to an executive authority, the legislature must prescribe a policy, standard, or rule for their guidance, which will set limits on the authority’s powers and not give them arbitrary discretion to decide how to frame the rules[22].

The Bill does not provide any guidance on the nature of laws which the central government may notify. Therefore, in the absence of standards, criteria or principles on the types of laws which may be notified by the government, it may be argued that the powers given to the executive may go beyond the permissible limits of valid delegation.

Conclusion
It has been seen across the globe, that there has been efforts made to reduce or eliminate refugees and the situation of stateless. Although it had only limited effect so far, as it is still within the competence of individual nations and as an individual nation India does not appear to be conscious enough towards its responsibility to formulate a legislation to resolve this issue effectively.

In 2019, India hosted 41,000 refugees as per the UNHRC record and the number of those who could be stateless that India gave asylum to was estimated to be around 19,00,000 in Assam alone (actual figures could be much higher). With such huge numbers of People of Concern, it is high time for India to come up with a proper legislation that is in conformity with global needs, both for the betterment of citizens and non-citizens; and the Citizenship Amendment Bill (CAB) cannot be that desired legislation in its proposed form because of its selective nature[23].

References
Statutes:
  • The Constitution of India.
  • The Citizenship (Amendment) Act, 2016.
  • The Citizenship (Amendment) Act, 2019
Articles
  • OHCHR, the Principle of Non-Refoulement under International Human Rights Law.
  • Nations General Assembly, Convention Relating To the Status of Stateless Persons.
News Articles
  • Shuma Talukdar, Determination of Citizenship On The Basis Of Religion in Secular India: What Makes It Possible
  • Times of India, Why India Is Refusing Refuge to Rohingyas.
  • N. Sathiya Moorthy, Why Lankan Refugees Are Reluctant To Go Back Home.
Website:
  • https://www.indiatoday.in/india-today-insight/story/everything-you-wanted-to-know-about-the-caa-and-nrc-1630771-2019-12-23
End-Notes:
  1. India Constitution, Article 5
  2. Section 2(1)(b), The Citizenship Act, 1955, Act No. 57 of 1955.
  3. OHCHR, The Principle Of Non-Refoulement Under International Human Rights Law, It states that, Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status. (retrieved on 12th September, 2020), https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.
  4. United Nations General Assembly, Convention Relating To The Status Of Stateless Persons, Article 1(1), 28th September 1954, Treaty Series, vol. 360, p. 117, it reads as, term stateless person as a person, who is not considered as a national, under the operation of its law. (retrieved on 27th September, 2020) https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.24_conventionstateless.pdf.
  5. India Constitution, Article 14
  6. India Constitution, Article 20
  7. India Constitution, Article 21.
  8. India Constitution, Article 22
  9. The Citizenship (Amendment) Bill, 2016, https://www.prsindia.org/sites/default/files/bill_files/Citizenship_bill_2C_2016_0.pdf.
  10. Report of the Joint Committee on the Citizenship (Amendment) Bill, 2016, Joint Parliamentary Committee, Lok Sabha, (retrieved on 12th September, 2020)
    https://www.prsindia.org/sites/default/files/bill_files/Joint_committee_report_on_citizenship_28A_29_bill.pdf.
  11. The Citizenship (Amendment) Bill, 2016 (As passed by Lok Sabha), (retrieved on 12th September, 2020), https://www.prsindia.org/sites/default/files/bill_files/Citizenship_28A_29_Bill_2C_2019_as_passed_by_LS.pdf.
  12. Section 2, The Citizenship (Amendment) Act, 2019, Act No. 47 OF 2019
  13. Section 6, The Citizenship (Amendment) Act, 2019, Act No. 47 OF 2019
  14. Section 2, The Citizenship (Amendment) Act, 2019, Act No. 47 OF 2019.
  15. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
  16. Article 9 of the Constitution of the Democratic Socialist Republic of Sri Lanka states: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).
  17. Articles 361 and 362 of the Constitution of the Republic of the Union of Myanmar state the following. 361. The Union recognizes special position of Buddhism as the faith professed by the great majority of the citizens of the Union. 362. The Union also recognizes Christianity, Islam, Hinduism and Animism as the religions existing in the Union at the day of the coming into operation of this Constitution
  18. N. Sathiya Moorthy, WHY LANKAN REFUGEES ARE RELUCTANT TO GO BACK HOME, Times of India, (retrieved on 12th September, 2020) https://timesofindia.indiatimes.com/city/chennai/why-lankan-refugees-are-reluctant-to-go-back-home/articleshow/65591130.cms
  19. Times of India, WHY INDIA IS REFUSING REFUGE TO ROHINGYAS, 6th September, 2017, https://timesofindia.indiatimes.com/india/why-india-is-refusing-reguge-to-rohingyas/articleshow/60386974.cms.
  20. The Second Amendment to the Constitution of Pakistan passed in 1974 effectively declared Ahmaddiyas as non-Muslims.
  21. Report of the Sub-Committee on North East Frontier (Assam) Tribal and Excluded Areas, 28th July, 1947; Constituent Assembly of India Debates, Volume IX, 5th, 6th and 7th September, 1949.
  22. Hamdard Dawakhana and Anr., v. The Union of India (UOI) and Ors., AIR 1960 SC 554; Confederation of Indian Alcoholic Beverage Companies and Ors. v. The State of Bihar and Ors., 2016(4) PLJR 369.
  23. Shuma Talukdar, Determination Of Citizenship On The Basis Of Religion In Secular India: What Makes It Possible?, Times of India, (retrieved on 12th September, 2020), https://www.indiatimes.com/news/india/determination-of-citizenship-on-the-basis-of-religion-in-secular-india-what-makes-it-possible-502071.html

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