• B.S. Ashish

ALL YOU NEED TO KNOW ABOUT CITIZENSHIP AMENDMENT ACT 2019

The Citizenship Amendment Act of 2019 is an amendment that has been undertaken to the Citizenship Act of 1955. The CAA of 2019 represents a collective amendment to the aforementioned legislation, that includes the amendment of Section 2, Section 7D, Section 18, Third Schedule and the insertion of a new provision under Section 6 – 6B.


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What is the main objective behind this amendment?


The main objective of CAA 2019 is to vest citizenship or undertake the process of naturalization of the persecuted minorities in three specific countries – Pakistan, Afghanistan and Bangladesh. Six communities were listed in the amendment – namely Hindus, Sikhs, Buddhists, Jains, Parsi and Christians, and those belonging to any of these six communities who fled to India from the aforementioned three countries due to persecution or fear of persecution before the 31stof December 2014 are the specific beneficiaries under this particular legislation.

The government selected the six mentioned communities on the basis of religious minorities facing persecution specifically in Pakistan, Afghanistan and Bangladesh. Though the word ‘persecuted’ is not mentioned in the bill, it was mentioned in the statement of objects and reasons delivered by Shri. Amit Shah in the Lok Sabha. While this has provoked different arguments, I support the argument of the former Attorney General of India and the constitutional expert, Soli Sorabjee, that it is constitutional, as long as in the course of the proceedings it has been explained.


Are Muslims excluded from this amendment?Does this affect existing Muslim citizens in India?


About the recurrent question of whether Muslims are really excluded from this amendment, I believe that the whole rationale behind the Indian Government selecting the six communities mentioned in the amendment from the three constitutionally Islamic countries – Pakistan, Afghanistan and Bangladesh is based on the specific yardstick of religious persecution and not sectarian persecution. The Ahmediyyas, Hazaras and other Muslim sects brought up by anti-CAA activists do not fall under the yardstick of ‘religious minorities’ rather, they fall under ‘sectarian minorities’ which has nothing to do with the current amendment. Nowhere in the amendment is it mentioned that the citizenship of the existing Indian Muslims will be re-evaluated or terminated. Neither does it claim that it is going to turn down individual citizenship applications for Muslims, nor does it claim that India is not going to provide refuge or asylum to Muslim minorities from these countries. In fact, right from the uprising of the Taliban, India has provided asylum and refuge to both Muslim and Non-Muslim Afghans. Thus,


I would like to reiterate the fact that this amendment has nothing to do with the exclusion of the Muslims citizens of India, rather, it deals with the inclusion of the six religious minorities facing persecution.

I urge people to understand that this amendment is an amendment of inclusion and not exclusion.

Does this amendment violate Article 14?


The legal argument of Article 14 against CAA also ceases to exist if one understands the fact that this 2019 amendment does not “infect the citizenship act with religion”, it just uses this criteria specifically to the above three countries to identify the population that amounts to the persecuted minority community. The intelligible differentia that is offered here is between collective recognition of a community entitled to citizenship and individual citizenship,” quoted Mr. J. Sai Deepak, an advocate in the Supreme Court of India. The aforesaid six communities are collectively identified under the yardstick of religiously persecuted groups from the three nations. However, no provision of the amendment denies individual applications for citizenship from other communities like the Muslims or the Jews. The applications from these communities will be accepted under the Foreigner’s Act and under the process of naturalization encompassed within the Citizenship Act.

Also, one has to understand that the General Principle in law states that if there are general provisions and specific provisions, that provision which has the closest proximal relationship with the issue is the provision that must be looked into. If one decodes this general principle, Part II of the Indian Constitution – Articles 5 to 11, along with the Foreigner’s Act and the Citizenship Act are the ‘specific provisions' and Article 14 falls under Part III of the Constitution which is a ‘general provision’. Thus, as long as the provisions and amendments on the grant of citizenship created by the Union Parliament of India, as authorized by Article 11 of the constitution, is not in violation of the specific provisions, these provisions and amendments are to be taken under the Citizenship Act and are deemed to be constitutional.

Why is Afghanistan included in this amendment?


As far as the question of the inclusion of Afghanistan is concerned, it is rightly pointed out in the second paragraph of the statement of object reason, that there has always been trans-migration between Afghanistan, Pakistan, and India. Thus, there is a good number of minorities in Afghanistan, therefore, India has a civilizational obligation to protect these minorities as well. If one must understand the civilizational obligation of India, they have to be familiar with the Liaquat Ali – Nehru pact of 1950.

What is Liaquat Ali-Nehru Pact of 1950?


The Liaquat Ali-Nehru Pact of 1950, also known as the Delhi Pact was signed between Liaquat Ali Khan, the former Prime Minister of Pakistan and Pandit Jawaharlal Nehru, the former Prime Minister of India on April 8, 1950 in the backdrop of severed economic relations between India and Pakistan after the events of December 1949. This pact ensured that refugees are allowed to return to their places of residence prior to the partition of the Indian subcontinent to dispose off their property, and also ensure that abducted women and looted property are to be returned. Apart from this, forced conversions were unrecognized and minority rights were granted. [Britannica, Delhi Pact , Editors of Britannica encyclopedia]

I firmly support Mr. J. Sai Deepak when he claimed that this pact invoked the critical hostage theory where Pakistan retained some of the non-Muslim population as hostages in Pakistan just to ensure the rights of Muslim minority in India who refused to shift to Pakistan. Despite opposition from leaders like Sardar Vallabhai Patel, Nehru went on to sign this deal with Liaquat Ali – which has bestowed the aforementioned civilizational obligation upon India to house the persecuted non-Muslim minorities from these three countries.

Should Sri Lanka have been a part of this amendment?


“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)” reads Chapter 2 Article 9 of the Sri Lankan Constitution which makes it ample clear that Buddhism is the foremost priority of the Sri Lankan State, whilst assuring rights to the other recognizedreligions of Hinduism, Islam and Christianity. According to the provisions ensuring religious rights in the Constitution. Despite the claim of pro-CAA activists that Sri Lanka’s figures of religious persecution after the civil war has significantly dwindled, the new anti-Muslim and anti-Christian sentiment has swept across most of Asia, especially Sri Lanka in the last few years.

The Special Rapporteur on the Freedom of Religion or Belief from the Office of the High Commissioner for Human Rights (OHCHR) in Geneva, visited Sri Lanka in August 2019 to observe Sri Lanka’s status with regard to religious tolerance and advise the Government on the same. He mentioned the following in his report :


“Often, the Muslim communities and new Christian churches in particular faced harassment and assaults. This ranges from interruption of worship, damage to places of worship, physical assaults on clergy, intimidation, mob violence towards the community orclergy, demands for registration of the church or mosque and restricting the use of places of worship, the obstruction of religious rites such as those related to burial ceremonies or access to cemeteries, incitement of violence to the community and manyother acts of intolerance. The Muslim communities have faced increased hostility especially after the April bombings.Prior impunity has strengthened the anti-Muslim groups. Weak and un-coordinated responses to anti-Muslim violence have witnessed a rise in violence and attacks on individuals and the communities in parts of the country.”

This suggests the extent of violence inflicted against these communities which is a cause for concern.

Many sources have concluded that the present government headed by Gotabaya Rajapaksha has become increasingly intolerant towards non-Buddhist religious minorities, especially Muslims and Christians.

Considering the whole amendment was established on a “humanitarian basis,” as claimed by senior ministers of the Government, and also considering the transmigration among Malaysia, Sri Lanka and India that has been in practice right from the reign of the Cholas and Pandiyas in South India, as concluded by S.K Devi in her report “Mysteries of an ancient migration from India” I strongly believe that the same argument that applied to the inclusion of persecuted minorities from Afghanistan has to be applicable in the case of Sri Lanka too. Thus, in my opinion, persecuted religious communities from Sri Lanka should have also been a part of the amendment.

Does this amendment violate the Assam Accord in anyway?


Section 6B Clause 4 of the Citizenship Act after CAA 2019 states that,


“Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under "The Inner Line" notified under the Bengal Eastern Frontier Regulation, 1873”

Thereupon it ensures that this amendment is not in violation of the Assam Accord, and the Inner Line Permit was extended to Manipur on 13 December, 2019 by the President after the meeting with the representatives of the said states. The request of the Assam Assembly to share the burden of refugees with the Rest of India was accepted by the Home Ministry of India, and many sources claim that genuine Assamese protests were dropped thereafter.

In fact, the Assam Health and Finance Minister HimantaBiswa remarked that the CAA 2019 had been implemented to address the unresolved issue of the Assam Accord of 1985, in the Assamese Assembly. He also quoted,


“The fear among people that CAA will bring in millions of people has to be dispelled.” [The Hindu – Guwahati, Special Correspondent, January 14, 2020]

Conclusion


In my opinion, many people fail to understand that a ‘case to case’ basis has to be adopted by the government, while granting citizenship to refugees and illegal immigrants. That being said, I hope for the government to revisit this amendment in the future in order to include other important communities which were left out of this amendment due to the amendment’s limited scope.


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