The Citizenship (Amendment) Bill, 2016: An amendment in furtherance to the election promises of the ruling party

Since the inception of the Constitution, citizenship and immigration laws have been a delicate subject in India. Whenever influx of immigrants and refugees, owing to domestic instability in the neighboring countries increases, a need for revising the citizenship law arises. Dr. B. R. Ambedkar once commented on citizenship laws, “Except one other article in the draft constitution, I do not think that any other article has given the drafting committee such a headache as this particular article. I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover.”

The Citizenship (Amendment) Bill, 2016 (hereinafter referred to as “Bill”) was introduced by Minister of Home Affairs, Mr. Rajnath Singh on 19th July, 2016 in the Lok Sabha. The objective of the bill is to make amendments to the existing Citizenship Act, 1955 (hereinafter referred to as “Act”). The Citizenship Act, 1955 outlines different modes of acquiring Indian Citizenship, such as, by birth, by descent, by registration, by naturalization and by incorporation of territory. In furtherance it also specifies the conditions and restrictions for attaining Indian citizenship, termination of Indian citizenship and deprivation of Indian Citizenship. The Act has been amended five times since its enactment.

The new Bill seeks to make drastic changes in the citizenship and immigration norms of the land by relaxing the requirements for attaining Indian citizenship. The key change that the Bill seeks to amend is the definition of ‘illegal immigrant’. The Act prohibits illegal migrants from acquiring Indian citizenship. It defined an illegal migrant as a foreigner; (i) who enters India without a valid passport or travel documents, or (ii) stays beyond the permitted time. The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship, though the Bill amends the Act to provide that the following minority groups will not be treated as illegal migrants: Hindus, Sikhs, Bhuddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. However, to get this benefit, they must be exempted from the following: (i) the provisions of Passport (Entry into India) Act, 1920, an act that mandates foreigners to carry passports; (ii) the application of the provisions of the Foreigners Act, 1946, an act which regulated the entry and departure of foreigners in India.

The Act provides for a person to apply for citizenship by naturalization if he/she meets certain qualifications. One of these is that the person must have resided in India or served the central government for a certain period of time: (i) for the 12 months immediately preceding the application for citizenship, and (ii) for 11 of the 14 years preceding the 12 months period. Now, the Bill seeks to reduce the requirement of 11 years to acquire “citizenship by naturalization” to only 6 years of ordinary residence for the abovementioned exempted illegal migrants/minorities.

At present the Act provides that the central government may cancel registration of Overseas Citizen of India on various grounds, including; (i) if the Overseas Citizen of India has registered through fraud, or (ii) if within five years of registration, the Overseas Citizen of India was sentenced to imprisonment for two years or more. The Bill adds one more ground for cancelling registration, that is, if the Overseas Citizen of India has violated any law in the country (India). The widening of ground for cancelling registration of Overseas Citizen of India will include violation of any law in the country, but clarity must be sought on whether minor violations such as over-speeding etc. should result in cancellation of registration.

The ruling party in its election manifesto during 2014 had promised to grant citizenship to Hindus from Muslim majority countries. The idea was to welcome persecuted Hindus from around the world to seek refuge in India which is a natural home for such Hindu minorities. In furtherance to their election manifesto the ruling party putting upon themselves the responsibility of these Hindu minorities has introduced the Bill to accommodate them in India. But the government by proposing the amendment has invariably violated the un-codified refugee policy of the nation and equality that Article 14 of the Constitution of India provides for. The basic primary policy of the un-codified refugee policy of the nation was that the refugees would return back to their homeland once normalcy prevailed in their homeland. Further Article 14 guarantees equality to all persons, citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose. The Statement of Objects and Reasons of the Bill does not explain the rationale behind differentiating between illegal migrants on the basis of the religion they belong to.

Speaking about the Bill it is pertinent that the Assam Accord of 1985 be mentioned herein. The Assam Accord of 1985 was the second significant attempt to cloak religion with citizenship laws. The massive wave of immigrants from Bangladesh had altered the demographic structure of Assam, leading to staggering growth of the Muslim population. Unchecked immigration and a dwindling Hindu population caused resentment amongst native Assamese and thus the Assam Accord of 1985 clearly states that illegal migrants heading in from Bangladesh after March 25, 1971, would be deported. Now the Bill contradicts the Assam Accord and thus has given birth to political unrest and turbulence in the State.

India has been regularly making efforts towards illegal minorities. India does not have any provision awarding refugee status to migrants. Currently, there is no specific law governing the Government’s stance for dealing with the refugees. Moreover, India is not a signatory to the 1951 UN convention of the status of refugees and the 1976 Protocol for to the status of refugees. However, under the provisions in the Act, the government under certain set of instructions can grant Long Term Visa to migrants. Now with the proposed amendment would tweak this Act to broaden its perspective in providing the above mentioned minorities not just Long Term Visa but also qualifying them from citizenship. Similarly the Supreme Court in Committee for C.R. of C.A.P. v. State of Arunachal Pradesh directed the Government of India and Arunachal Pradesh to grant citizenship to eligible persons from these communities and to protect their life and liberty and further prohibited discrimination against Chakmas and Hajongs (ethnic group) of Bangladesh

The Citizenship (Amendment) Bill, 2016 when passed would definitely be of immense benefit to the minorities, who fled from Pakistan, Afghanistan and, Bangladesh, however the Bill should not only look at specific minorities but must look at victimized minorities of all denominations who have or will make India their home, and thus accordingly the Bill shall be upholding the essence of Article 14 and the principle of Secularism enshrined in the Constitution of India. There is much a slip between the cup and the lip, the Bill has only been introduced in the Lok Sabha and has a long arduous journey before it is amended, passed and enacted. Before concluding, a seed of thought for the reader is what if Pakistan initiated offering, Indian Muslims, citizenship on the ground that they are a persecuted minority?

Published by Pushkar Taimni

Pushkar Taimni is a lawyer based in India. He can be contacted at taimnico@gmail.com.

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