Updated: Aug 15, 2020
Author:- Paras Nath Mishra
B.A. LL.B 2nd Year Asian Law College, Noida
CITIZENSHIP (AMENDMENT) ACT, 2019.
SPECIAL CASE OF NORTH-EASTERN STATE.
NATIONAL REGISTER OF CITIZEN (NRC).
DIFFERENCE BETWEEN CAA & NRC.
ISSUES ARISING OUT OF CAA.
1) Citizenship: The position or status of being a citizen of a country.
2) Persecution: Hostility and ill-treatment, especially because of race or political or religious belief.
3) Immigration: A person who comes to live permanently in a foreign country.
MIGRATION LAWS IN INDIA:
· Parsi’s Persecution (12th-20th century): The Parsi’s Persecution took place in Iran and large community of Parsi’s Persecuted people flee from Iran to the coast of Gujarat and then to Maharashtra especially to Mumbai, where we still found some of the Parsi’s are residing in Mumbai.
· 1947 Partition: A big wave of migration was done in 1947, the partition of India took place and new country was formed i.e. Pakistan, where huge amount of people migrated from India to Pakistan and vice-versa. But large amount of people entered the territory of India.
· 1971 Bangladesh Liberation War: When Bangladesh got separated from Pakistan, the major wave of migration was done where large amount of people flee from Bangladesh to India and North-Eastern part of India especially to Assam.
· 1959 Tibetan’s Migration: Relatively minor wave of migration where people of Tibet flee from Tibet to India in 1959-60 due to persecution done by Chinese government.
· 1979 Soviet Afghan War: Soviet afghan war took place where large part of Afghani’s flee from Afghanistan and settled in India.
· 1980-90’s Sri-Lankan civil war: Due to which a large amount of people migrated from Sri-Lanka and settled in Southern part of India.
· 2015- till now Rohingyas: Migration of Rohingyas took place till 2017 but still migration of Rohingyas from Myanmar to Bangladesh and from Bangladesh to India is going on.
CITIZENSHIP LAWS IN INDIA:
1) The Constitution of India: Part 2nd of the constitution of India (Article-5 to 11) deal with the citizenship of India. Article-5 deals with the citizenship of India and Article-11 gave powers to the Parliament with respect to acquisition and termination of citizenship and all others matter related to citizenship. People living in the territory of India as on 26 November, 1949 automatically became Indian Citizens. The Constitution of India also made provision regarding citizenship for migrants from the territories of Pakistan which had been part of India before partition.
2) The Citizenship Act, 1955: The Citizenship Act, 1955 deals with the citizenship of India after the commencement of the Constitution. This act provide the acquisition and termination of Indian Citizenship. This act has been amended by the Citizenship (Amendment) Acts of 1986, 1992, 2003, 2005, 2015 and 2019.
· Acquisition of Indian Citizenship under this Act:
I. By Birth: An individual is a citizen of this country by birth.
II. By Descent: if both of the parents or either of them is a Indian Citizen, not being an illegal migrants.
III. By Registration: if a person married to an Indian Citizen and ordinarily resident in India for seven years before making an application for registration.
IV. By Naturalization: if he/she is ordinarily resident of India for 12 years and fulfills all qualification mentioned in 3rd schedule of The Citizenship Act. ( now new criteria has been added for some class of community).
V. By Incorporation of Territory: if any new territory became a part of India then government will grant the citizenship to those people.
· Loss of Citizenship under this Act:
The Citizenship Act, 1955 prescribes three ways of losing Citizenship:
1) By Renunciation: is a voluntary act by which a person after acquiring the citizenship of another country gives his Indian citizenship.
2) By Termination: The Constitution of India provides single citizenship and if one person took the citizenship of another country his citizenship will automatically be terminated.
3) By Deprivation: if any person by itself shows disloyalty towards the constitution of India then that person will going to deprived of his citizenship as per established by law.
1. Illegal Migrants: An illegal migrants in India is a foreigner who has entered India either without valid document or who initially had a valid document but has overstayed beyond the permitted time.
I. As per the general provisions of Citizenship Act, 1955, an illegal migrant is prohibited from acquiring Indian citizenship.
II. According to Indian Law, Illegal Migrants are not refugees. They can be prosecuted in India and deported or imprisoned.
III. Illegal Migrants are subject to The Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the Central Government.
IV. The 1920 Act mandates foreigners to carry passport, while the 1946 act regulates the entry and departure of foreigners in India.
V. The Foreigners Act, empowers the Indian administration to detain a person until they are deported back to their country.
2. Overseas citizenship of India (OCI): The OCI is an immigration status permitting a foreign citizen of Indian origin to live and work in the Republic of India.
I. It was introduced by the Citizenship (Amendment) Act, 2005, in august 2005. It was launched during the Pravasi Bhartiya Divas convention held in Hyderabad in late 2005.
II. The Constitution of India prevents Indian Citizens from holding dual citizenship. As such the OCI is not actual citizenship of India. According to Indian law as it has many limitations such as no right to vote, no right to hold constitutional offices and no right to buy an agriculture land.
III. To apply for and use an OCI document, holder must be a citizen of and hold a passport of another country except that of Pakistan and Bangladesh.
2. CITIZENSHIP (AMENDMENT) ACT, 2019:
As per Amendment passed on 12th September, 2019 the central government exempted certain groups of illegal migrants from being deported or imprisoned.
I. Hindus, Sikhs, Buddhists, Jains, Parsi’s or Christians from Afghanistan, Pakistan, Bangladesh was compelled to seek shelter in India due to religious persecution and entered India on or before 31st December, 2019, they would not be treated as an illegal migrants for all practical purposes.
II. This act also created an exception for 6 religions from 3 countries where time period was reduced to 5 years from 11 years and other than these 6 religions from 3 countries have to stay 12 years for citizenship by naturalization.
III. The act also makes amendments to provisions related to OCI cardholders. A foreigner may register as an OCI under the 1955 act if they are Indian origin or the spouse of a person of Indian origin. This act allow cancellation of OCI registration if the person has violated any law notified by the central government.
3. SPECIAL CASE OF NORTH-EAST:
I. This act will not apply to the tribal areas of Assam, Meghalaya, Mizoram and Tripura as included in the sixth schedule of the constitution.
II. It will also not apply to the areas under the Inner Permit Line under the Bengal Eastern Frontier Regulation, 1873.
III. The Inner Line Permit regulates visit of Indians to Arunachal Pradesh, Mizoram and Nagaland ( Now Manipur is also included in ILP).( INNER LINE PERMIT MEANS: If an Indian citizen or any foreigner want to go Arunachal Pradesh, Mizoram, Nagaland and Manipur they need Inner Line Permit. Basically, it is a allowances pass to travel in these four states.)
IV. This act also says that after acquiring citizenship such person shall be deemed to be citizen of India from the date of their entry into India, and all legal proceedings against them in respect of their illegal migration or citizenship will be closed.
4.NATIONAL REGISTER OF CITIZENS (NRC): It is a register maintained by the government of India containing names and certain relevant information for identification of Indian citizens of Assam State only. The register was first prepared after the 1951 census of India and since then the exercise to update it for the 1st time commenced due to an order of Supreme Court of India in the year 2013.
CRITERIA FOR BEING INDIAN CITIZEN (ASSSAM):
1) Those whose names were in NRC 1951 census or in any of the electoral rolls up till March, 1971, those and their descendants will get Indian Citizenship.
2) For those who came after March, 1971 the demand is to repatriate them to their country of origin (as per Assam Accord). But the problem is Government does not have any repatriation treaty from any of the neighbouring countries.
3) The legal provision of NRC have been a part of the Citizenship Act, 1955 since December, 2004.
ASSAM ACCORD: The Assam Accord, 1985 was a memorandum of settlement signed between the representatives of Government of India and the Leaders of the Assam Movement in New Delhi on 15 August,1985. Under the Assam Accord of 1985, Foreigners who had entered Assam before March 25, 1971 were to be given citizenship, religious persecution was no consideration and the rest had to be expelled but the amended citizenship act shifts the cut-off date of Citizenship Act to 31st December, 2014, which will grant the citizenship to illegal migrants of 6 religions from 3 countries to enter the territory of India. (Now Assam is witnessing violent protests over amended citizenship).
5 DIFFERENCE BETWEEN CAA AND NRC RESPECTIVELY:-
6 ISSUES ARISING OUT OF CAA:
Q. What is the need of CAA?
Ans. Nehru- Liaquat Pact( the Delhi Pact) was signed between India and Pakistan on 8th April, 1950, in which refugees were allowed to return to dispose of their property, abducted women and looted property were to be returned forced conversions were unrecognized and minority rights were confirmed and protected.
1) CAA is now correcting the historical wrong by offering citizenship to religious minorities from these countries i.e. Afghanistan, Bangladesh, Pakistan.
2) CAA is not against any Indian Muslims.
3) No Indian citizen of any religion will be impacted by CAA.
· Mr. Jogendra Nath Mondel has resigned from the Parliament of Pakistan. The reason of resignation was anti-Hindu biased of Pakistan’s administration. He was the law and labor minister from 1947-50 in Pakistan and he was also the founding Father of Pakistan.
Q. IS CAA IS TARGETING INDIAN MUSLIMS TO TAKE AWAY INDIAN CITIZENSHIP?
ANS. No. It is about giving citizenship to persecuted minorities who settled in India till 2014 and not to take away citizenship from anyone.
Q. WHY THE SITUATION OF ASSAM IS DIFFERENT FROM OTHER NORTH-EASTERN STATES?
ANS. The protest in North-Eastern states is due to feat of loosing their demography, loss of livelihood opportunities, erosion of the indigenous culture. Assam has a history that is shaped by migration and protests were against CAA not against NRC. After the implementation of NRC in ASSAM the majority population was Bengali Hindus and if we go through the CAA Act the Bengali Hindus who entered the Indian territory will get the citizenship even to those who entered the territory between 1971-2014 which will affect the resources of Assam.
Q. IS IT VIOLATE ARTICLE-14 OF INDIAN CONSTITUTION?
ANS. It is said to be violate of ARTICLE-14 of the Constitution that guarantees equal protection of laws as it provides differential treatment to illegal migrants on the basis of their country of origin, religion, date of entry into India etc. Granting citizenship on the basis of religion is against the very nature of the basic structure of the constitution and that cannot be altered by the Parliament. But there have been several judgements, by the Supreme Court which says that reasonable classification can be applied to this Principle of Equality. And we all know that fundamental rights are followed by reasonable restrictions. Rest, wait for Apex Court’s decision.
Q. WHY ONLY 3 COUNTRIES? WHY NOT SRI-LANKA, TIBETANS, BHUTAN AND SOME REGION OF CHINA?
ANS. GOVERNMENT SAYS: Because these three countries have specific state Religion. But the minorities of Sri-Lanka, Bhutan, Tibet, and some part of china can get citizenship of India because the main process of residing 12 years in India for citizenship is still open.
Q. WHY ONLY 6 COMMUNITIES? WHY NOT AHMADIYA MUSLIM FROM PAKISTAN AND ATHIEST FROM BANGLADESH?
ANS. GOVERNMENT SAYS: These 6 communities are minorities in these countries and are facing religious persecution. But citizenship for Ahmadiya Muslims and atheist from Bangladesh can get citizenship of India by naturalization ( by residing 12 years in Indian territory).
Q. WHY ONLY RELIGIOUS PERSECUTION?
ANS. Because this is one of the persecution among other fault line which can be done i.e. persecution along race, persecution along caste, persecution along religion and also persecution along political belief can be done.
Q. WILL MUSLIMS FROM PAKISTAN, BANGLADESH AND AFGHANISTAN NEVER GET INDIAN CITIZENSHIP?
ANS. The Home Ministry clarified saying that the criteria of acquiring citizenship by any foreigner will be residing the 12 years in India. CAA does not alter or amend the process in any manner. The Ministry further stated that hundreds of Muslims migrating from Pakistan, Bangladesh, Afghanistan have been granted citizenship previously. Similarly, all future migrants will get the citizenship irrespective of religion if found eligible.
Have faith in judiciary and the Constitution, no rights will be violated of any citizens and if the decisions of government is going wrong and their latent policy is against particular community (which is not true) then file a PIL and protest silently. Do not disrupt the property because that property is our own.
As we all know that India has a philosophy of “vasudev kutumbkam” which means the whole world is one Family and thought of which is still applied in our country. No one have to fear of discrimination including minorities. Even India has awarded some prominent positions to minorities to follow the rule of “vasudev kutumbkam”. No law is perfect, every law has some loopholes but that can only be corrected if we follow the policy of Non-violence.
“Silent workers always gets his way”.