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#1.Case Study On CAA
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Case Study :- Citizenship (Amendment) Act, 2019
Date 1
INTRODUCTION
Introduction
The Citizenship Amendment Bill was first introduced in 2016 by the Lok Sabha by amending the Citizenship Act of 1955. This bill was referred to a Joint Parliamentary Committee, whose report was later submitted on January 7, 2019. The Citizenship Amendment Bill was passed on January 8, 2019, by the Lok Sabha which lapsed with the dissolution of the 16th Lok Sabha. This Bill was introduced again on 9 December 2019 by the Minister of Home Affairs Amit Shah in the 17th Lok Sabha and was later passed on 10 December 2019. The Rajya Sabha also passed the bill on 11th December.
The CAA was passed to provide Indian citizenship to the illegal migrants who entered India on or before 31st December 2014. The Act was passed for migrants of six different religions such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Any individual will be considered eligible for this act if he/she has resided in India during the last 12 months and for 11 of the previous 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.
What is Citizenship?
What is Citizenship?
Citizenship defines the relationship between the nation and the people who constitute the nation.
It confers upon an individual certain rights such as protection by the state, right to vote and right to
hold certain public offices, among others, in return for the fulfillment of certain duties/obligations
owed by the individual to the state.
Citizenship in India
- The Constitution of India provides for a single citizenship for the whole of India.
- Under Article 11 of the Indian Constitution, Parliament has the power to regulate the right of citizenship by law. Accordingly, the parliament had passed Citizenship act of 1955 to provide for the acquisition and determination of Indian Citizenship.
- Entry 17, List 1 under the Seventh Schedule speaks about Citizenship, naturalization and aliens.
- Thus, Parliament has exclusive power to legislate with respect to citizenship.
- Until 1987, to be eligible for Indian citizenship, it was sufficient for a person to be born in India.
- Then, spurred by the populist movements alleging massive illegal migrations from Bangladesh, citizenship laws were first amended to additionally require that at least one parent should be Indian.
- In 2004, the law was further amended to prescribe that not just one parent be Indian; but the other should not be an illegal immigrant.
Who is an illegal migrant in India?
Illegal migrant
Under the Act, 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.
Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and the Passport (Entry into
India) Act, 1920.
The scenario before the passing of the Act
- Under the existing laws, an illegal migrant is not eligible to apply for acquiring citizenship. They are barred from becoming an Indian citizen through registration or naturalisation. The Foreigners Act and the Passport Act debar such a person and provide for putting an illegal migrant into jail or deportation.
- A person can become an Indian citizen through registration. Section 5 (a) of Citizenship act of 1955: A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration; And they should have lived in India continuously for 12 months before submitting an application for citizenship.
- Under the Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
Scenario before Act
Features of CAA 2019
Features
The Act seeks to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India. In other words, the Act intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbour to become citizens of India.
The legislation applies to those who were “forced or compelled to seek shelter in India due to persecution on the ground of religion”. It aims to protect such people from proceedings of
illegal migration.
The amendment relaxes the requirement of naturalization from 11 years to 5 years as a specific condition for applicants belonging to these six religions.
The cut-off date for citizenship is December 31, 2014, which means the applicant should have
entered India on or before that date.
The Act 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.
Exceptions
Exceptions
- The Act adds that the provisions on citizenship for illegal migrants will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule of 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 Permit under the Bengal Eastern Frontier Regulation, 1873.
- The Inner Line Permit regulates the visit of Indians to Arunachal Pradesh, Mizoram, and Nagaland.
Concerns against the Amendment Act
Concerns
- Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality and applicable to both the citizens and foreigners) and the principle of secularism enshrined in the preamble of the constitution.
- India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
- It will be difficult for the government to differentiate between illegal migrants and those persecuted.
- The Bill throws the light on the religious oppression that has happened and is happening in these three countries and thus, may worsen our bilateral ties with them.
- It provides wide discretion to the government to cancel OCI registrations for both major offences like murder, as well as minor offences like parking in a no-parking zone or jumping a red light.
Issues in the North-East
- It contradicts the Assam Accord of 1985, which states that illegal migrants, irrespective of religion, heading in from Bangladesh after March 25, 1971, would be deported.
- Critics further argue that the extensive exercise of updating the National Register of Citizens (NRC) will become Null and Void due to this Amendment act.
- There are an estimated 20 million illegal Bangladeshi migrants in Assam and they have inalienably altered the demography of the state, besides putting a severe strain on the state’s resources and economy.
Government’s Stand
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.
1)According to the government, this Bill aims at granting rather than taking away someone’s citizenship.
2)It has assured that the government will examine the application from any other community on a case to case basis.
Government’s Stand
- 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.
- Government has cited that the partition of India on religious lines and subsequent failure of the Nehru-Liaqat pact of 1950 in protecting the rights and dignity of the minorities in Pakistan and Bangladesh as the reasons for bringing this Bill.
- After Independence, not once but twice, India conceded that the minorities in its neighbourhood are 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.
- Regarding questions of not including minorities from Sri Lanka, Myanmar, etc., the Government clarified that the process of awarding citizenship to refugees has been undertaken by different governments in the past on case to case basis from time to time, on “reasonable qualifications to Article 14”. This time the case of refugees fleeing religious persecution from these three countries has been considered through this Bill.
Other
Clarification
Conclusion
- The parliament has unfractured powers to make laws for the country when it comes to Citizenship. But the opposition and other political parties allege this Act by the Government violates some of the basic features of the constitution like secularism and equality. It may reach the doors of the Supreme Court where the Supreme Court will be the final interpreter. If it violates the constitutional features and goes ultra-wires it will be struck down, if it is not we will have a new law.
- But one thing that is most important is, an equilibrium has to be attained by New Delhi as this involves neighboring countries too. Any exaggerated attempt to host the migrants should not be at the cost of goodwill earned over the years. India being a land of myriad customs and traditions, a birthplace of religions and the acceptor of faiths and protector of persecuted in the past should always uphold the principles of Secularism going forward.
Conclusion
Nehru-Liaquat Pact
- It was an agreement between the Governments of India and Pakistan regarding Security and Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan.
- The need for such a pact was felt by minorities in both countries following Partition, which was accompanied by massive communal rioting.
- In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.
Under the Nehru-Liaquat pact
- refugees were allowed to return unmolested to dispose of their property
- abducted women and looted property were to be returned
- forced conversions were unrecognized
- minority rights were confirmed
What did India and Pakistan agree upon?
What did India and Pakistan agree upon?
- “The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the pact said.
- “Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively.”