What’s wrong with the Citizenship Amendment Act, 2019 and National Register of Citizens?

Citizenship Amendment Act 2019

This article has been written by Anubhav Garg, a student of Delhi Metropolitan Education. In this article, he has made an objective analysis of the National Register of Citizens and the Citizenship Amendment Act, 2019. He has tried to ascertain its constitutionality, its implications on the country, and its alternates while busting some myths prevailing about them. 

  • What is National Register of Citizens?
  • What is Citizenship Amendment Act, 2019?
  • What is unconstitutional with CAA?
  • Violation of Article 14
  • Intelligible classification test
  • Reasonable nexus test
  • Does Article 14 extend to non-citizens?
  • Judicial Proceeding against Muslims ONLY!
  • Implementation problems of NRC and CAA
  • Deciding who is an illegal migrant
  • Detention centers
  • A threat to national security
  • Documentation: scope of errors
  • Myths busted: are Muslims denied citizenship in India?
  • Conditions for Citizenship in India
  • Conditions for citizenship after CAA
  • Muslims migrants
  • Muslims already residing in India
  • Will CAA really help persecuted minorities and refugees?
  • If not NRC, then what?
  • National Asylum Bill
  • Germany’s example
  • Involvement of Judiciary
  • Conclusion
  • References

What is the National Register of Citizens?

At its crux, the National Register of Citizen (NRC) is a record of all the legitimate citizens of India. The NRC is aimed at identifying all the illegal migrants from Bangladesh and Myanmar who have come to Assam before March 25, 1971 (midnight). This practice was adopted to send back the illegal migrants to their respective nations due to the reason of having limited resources for the Indian population in the state of Assam. 

NRC heavily depends upon one’s documents to decide whether he/she is a citizen of India or not. Till now, it has not been made clear what documents will be required, but Voter ID, passport, Aadhar card, birth certificate, any license issued by any state authority, insurance papers, school’s transfer certificate, papers of house or property sanctioned by any public authority will stand as a valid proof according to the statement from Home Ministry on 20th December 2019. 

According to the same statement, the people who don’t have any of these documents, they can be identified under NRC based on witnesses and/or community verification.

Till now, this practice has only been adopted in Assam under the Assam Accord. But Home Minister Amit Shah has announced it in Parliament that NRC will be applied to the whole nation. Even in Assam, 1.9million people (out of which 0.54million are Hindus approx) have failed to show the required document proof and therefore haven’t got their name in NRC.  

What is Citizenship Amendment Act, 2019?

The most controversial thing that Citizenship Amendment Act, 2019 (CAA) does is that it changes the definition of “illegal migrants” in Section 2(1)(b) of the Citizenship Act, 1955 and has exempted the people of Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who had entered into India before December 31st, 2014 from its purview. The section provides that: –

“…any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or

Christian community from Afghanistan, Bangladesh or Pakistan, who entered into

India on or before the 31st day of December 2014 and who has been exempted by the

Central Government by or under clause (c) of sub-section (2) of section 3 of the

Passport (Entry into India) Act, 1920 or from the application of the provisions of the

Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as

illegal migrant for the purposes of this Act;”

This section read with the amendment made in the Third Schedule of the Act, which deals with the qualification for citizenship by naturalization, provides that the above-mentioned category of people will be qualified for the certificate of registration/naturalization if they are serving the government or residing in India (or partly the one and partly the other) for 6 years (that’s why the cut-off date in CAA is of 31st December 2014 and that’s why it will be enacted by  2020) immediately preceding the date of such application and satisfy the criteria of Section 5 (Citizenship by registration) and of Third Schedule (qualifications for citizenship by naturalization), which are the same for every community. 

Central Government’s Stand and the Problem

The Central Government has said that this amendment is made with a view of protecting the religiously persecuted minorities in these countries. But the Muslim minorities like Ahmedians in Pakistan, Shias, and Hazaras in Afghanistan, Rohingyas in Myanmar, Hindus from Sri Lanka have been left out without any rationale. 

If the purpose was to protect the minorities only in the mentioned countries, then why Muslim Minorities were excluded? Why the countries like Myanmar (with which we share a long border unlike Afghanistan and when Rohingya Muslims from Myanmar are the most persecuted minorities in the whole world according to UN) and Sri Lanka (Sri Lankan Tamils constitute the highest number of refugees in India) are ignored by this amendment?

What is unconstitutional with CAA?

Violation of Article 14

Article 14 of the Constitution provides that the State can’t deny any person’s (whether citizens or non-citizens) equality before the law on the grounds of religion. 

As CAA provides that people of a certain community are illegal migrants and people of certain communities (Hindu, Jain, Sikh, Christian, Buddhist, and Parsi) from certain countries are not, it discriminates based on religion. Also, it provides that for citizenship by naturalization, people of certain communities and countries have to live in India or serve the Government for only six years while the other communities have to do the same only for twelve years, it is again the discrimination based on religion and place of birth. 

Article 14 prohibits the classification on the grounds of religion, race, caste, sex or place of birth. The conventional Article 14 violation test for any classification envisages that: –

  1. there should be an intelligible differentia in such classification;
  2. such classification should have a reasonable nexus with the object of the statute. 

Intelligible classification test

In Navtej Singh Johar vs Union Of India Ministry Of Law and Justice, it was held by Justice Indu Malhotra that intelligible differentia means reasonable differentia. She mentioned that the intelligible differentia test must satisfy two conditions. First, there should be criteria for inclusion and exclusion of people. Second, that such criteria should not be based upon the core and intrinsic traits of an individual. But religion is a trait of an individual’s autonomy and the classification based upon it is impermissible classification.  

Reasonable nexus test

For the second test, the main purpose of the CAA was “to protect the persecuted minorities in Afghanistan, Pakistan, and Bangladesh”. But excluding Muslims from the category of persecuted minorities based upon the false premise that they don’t face discrimination in Muslim majority country is wrong. Ahmedias in Pakistan, Shias in Afghanistan have faced religious persecution in many cases. Therefore, singling out Muslims doesn’t have any reasonable nexus to the main object of CAA.

Does Article 14 extend to non-citizens?

Even the Supreme Court held in Stephen’s College v. The University of Delhi, that  State shall provide equal protection to all the people of India who are the citizens of India and as well as to the non-citizens. 

Partiality based on religion in availing citizenship to migrants is a clear-cut violation of Article 14 and disdain of the fundamental rights of the Muslim migrants. CAA is an attack on the very idea of India and fundamentals of the Indian Constitution enshrined in the preamble and its provisions as it gives out the message to the Muslim community that they are not welcome and they are somehow less in this country by treating them differently.

Judicial Proceeding against Muslims ONLY!

According to Citizenship Amendment, once citizenship is conferred upon a person of Hindu, Sikh, Buddhist, Jain, Parsi or Christian community by the Central Government (or by any authority on that behalf) by imparting a certificate of registration/certificate of naturalization, all the proceeding pending upon them pertaining to citizenship will stand abated afterward. 

But as the Muslim migrants are excluded from the proviso of the definition of illegal migrants, they are still subject to the judicial proceedings pertaining to their citizenship, which can be filed on them by any person. This means, if a Muslim, who is not even a migrant somehow manages to get his name in NRC, anyone has the right to file an objection certificate against it (thousands of false objections had been filed on the day of the final draft of NRC to harass the Muslim migrants according to Alt news).  

This Act strong-arms the law of this country to see the people from the lens of religion and not of humanity. About 1,000 scientists have signed a petition against CAA. 402 lawyers only from the National University of Juridical Science have signed a statement of solidarity against CAA and NRC.

On average, one religious hate crime takes place in India every week. It is the 10th most unsafe country for Christians in the world. US commission has sought sanction against the Home Minister Amit Shah for this Act. United Nations Human Rights Commission has said that this act is “fundamentally discriminatory”.

Implementation problems of NRC and CAA

Deciding who is an illegal migrant

The main thing at play here is the procedure to identify an illegal migrant. There is no objective and judicial system in place under which a person residing in India can or willing to come to India can claim his citizenship. 

Under the present refugee management system of India, the Home Ministry will decide whether one gets long-term VISA or not. Under the long-term visa, a person has to stay in India for a certain period after which they become eligible for citizenship.

Detention centers

The NRC and CAA don’t do anything to send back the illegal migrants from the country, it just differentiates between migrants of one community from the other. The Hindu, Sikh, Christian, Parsi, Jain, Buddhists migrants not identified under NRC will claim citizenship under CAA. While sending the Muslim migrants under the same situation to the detention centers.

There are high chances that people who fail NRC will go to the detention centers and not to their countries. Unidentified people under NRC were kept in a detention camp instead of sending them back to their countries (In case of Assam NRC). The reason being their government refused to take them saying they don’t belong to their country. 

This means the main purpose of NRC and CAA to control the population and tackle the overburdening on the limited resources of the country have already failed. It will only increase the burden on the national treasure to even pay for the sustenance of these migrants. 

The government has spent INR 46cr of Taxpayers’ money to make a detention center in Assam. This detention center can hold only 3,000 people. Going by this figure the government has to spend INR 27,000cr(approximately, it can be much more) to make detention centers to accommodate the 1.9million people who are left out of NRC in Assam only. The amount to make the detention center in the whole country can easily cross the figure of INR 2lakh crore. The govt could have spent this money to give these migrants a better life instead of detaining them on the same amount if this Act hasn’t been enforced.

A threat to national security

India’s external spy agency, Research and Analysis Wing (R&AW) has shown a great concern before the Joint Committee of Parliament that foreign spy agencies like ISI of Pakistan and DGFI and NSI of Bangladesh can exploit the legal framework of the CAA to infiltrate the country with terrorists and spies.

CAA makes it much easier for people of certain communities to get Indian citizenship. It will now be easy for infiltrators to show the fake document of belonging to that particular community. And they can enter India much more easily than before.

Documentation: scope of errors

It took the government ten years and 1,660cr to implement NRC in Assam only. In the NRC conducted in Assam, 1.9million people didn’t have their names in it. Out of these 0.54million people are Bengali Hindus. Is the documentation in India that much reliable to determine the fate of the people 1.9million people failing to do so, forced to live in detention camps?

There can be two types of errors in the implementation of the NRC and CAA: –

Type 1 errors: Declaring an illegal migrant as a citizen of India (false positive);

Type 2 errors: Declaring a citizen of India as an illegal migrant (false negative).

According to an analysis by Livemint, if the requirements of NRC are made light type 1 errors will increase and if the requirements are made very strict, type 2 errors will increase. 

If the type 2 error rate in the implementation of NRC and CAA remains 5%, 6.7crore people will become stateless. The same number of people displaced in World War II. 

According to a report of the State of Aadhar report 2017-18 by IDinsight, the error rate in Aadhar was 8.8%. Even if this rate prevails, 11.79crore people will become stateless, which is a disaster for the country.    

People under NRC in Assam had to prove their citizenship by showing that they had come in India on or before March 25th,1971 from their documents as per Assam accord. The fate of 4million people has been left on the documents prepared by government employees who couldn’t commit any mistake in the times when there were no computers.

Cases of error in documentation

In one of the cases in Assam, the Kargil war veterans Sanaullah and Mohiruddin Ullah, despite having President’s medal, 30 years of service record and name in the voters’ list had to face insult of going to the detention camp because there was some spelling mistake of their name in their documents. A lawyer Indira Jaysingh got him out of the detention camp by filing a petition in Guwahati High Court. 

Myths busted: are Muslims denied citizenship in India?

Conditions for Citizenship in India

In India, the constitution imparts citizenship according to the provisions of the Citizenship Act, 1955 and the Citizenship Rules, 2009. Under the Citizenship Act, 1955, a person can be a citizen of India by: –

  1. Birth (Section 3);
  2. Descent (Section 4);
  3. Registration (Section 5);
  4. Naturalization (Section 6);
  5. Incorporation of Indian territory (Section 7). 

Conditions for citizenship after CAA

Muslims migrants

NRC doesn’t collect the data of people’s religion as per the statement from the Home Ministry. The people who are identified as illegal migrants under NRC, that is, in case of Assam those who were not present in India on or before 25th March 1971, irrespective of their religion. Under CAA, people from mentioned religions can claim citizenship upon fulfillment of these criteria-

  1. They are of the specified communities;
  2. Have citizenship of Afghanistan, Pakistan or Bangladesh;
  3. Came in India on or before 31st December 2014;
  4. Living in India or serving the Indian government for 6 years or more;
  5. By Citizenship by registration conditions specified in Section 5 of the Citizenship Act, 1955
  6. In case of citizenship by naturalization qualifications specified under the Third Schedule;
  7. If in their home country, they’ve faced religious persecution. Also, they have mentioned the same as the reason while coming to India. 

The CAA leaves Muslims out of this. Muslim migrants will be denied citizenship if they were not present in India before the cut-off date of NRC. It is also important to mention that even after NRC and CAA, the mentioned non-Muslim communities are also subject to the same requirements for citizenship by registration as the Muslim community. 

Muslims already residing in India

There has been no mention of Muslims already residing in India in CAA. In case of nationwide NRC, authorities will judge every person on similar criteria for granting citizenship irrespective of their religion. The only difference is that, as previously mentioned Muslims have to show that they are living in India on or before the cut-off date of NRC. The authorities will consider them as illegal migrants. While the people of other communities failing NRC will get another chance to claim citizenship under CAA.

The Muslims, living in India before the cut-off date of NRC has nothing to worry about. They will get the same treatment as any other community. 

Muslims across the world who wish to apply for Indian citizenship can still apply. They will be subject to only those conditions of citizenship by registration/naturalization as they were before the CAA. The Govt has imposed no prohibitions or extra conditions on the Muslim community under NRC and CAA.

Will CAA really help persecuted minorities and refugees?

Negative! According to the Intelligence Bureau (IB) of Home Ministry, only 31,313 out of 4crore (total number of migrants in the country) migrants will be benefited from CAA.

The Intelligence Bureau states that included people have to prove that they have been religiously persecuted. Which is in itself a very difficult proposition and that such a claim should have been made at the time of entering India by the refugees. 

India has a similar procedure as the Citizenship Amendment Act functional since 2015 under the Long Term Visa scheme. This scheme allows the mentioned category of illegal migrants from Bangladesh, Pakistan, and Afghanistan to reside in India legally. Merely 31,313 people have got the Long Term Visa on the grounds of religious persecution. Therefore, only these people can take the benefit of citizenship under CAA.

If not NRC, then what?

National Asylum Bill

Instead of impractical and discriminatory statutes like CAA, the government could have considered making an Asylum system. India is amongst the very few democracies in the world that doesn’t have it. The opposition has proposed it under the National Assylum Bill last year. NAB would have been much more effective in dealing with illegal migrants and refugees in the country. It could have given them a better life in this great nation.

Under this system, one can apply for refugee status by proving their persecution of any kind in their home country. A quasi-judicial system is in place by whose sanction a person can be given a temporary stay in the country and if his claims as a refugee are accepted by the judicial/quasi-judicial body, then long term benefits are followed. And in case of an exodus like in 1971, where 10million people come from East Pakistan to India, then you classify groups of people based on broader criteria.

The National Asylum system does not give citizenship merely on the grounds of religious persecution. But also on the persecution based on political inclination, ethnicity, language, sexual orientation, etc. 

Germany’s example

Germany has shown an excellent example of managing refugees in the country. They faced a recent exodus from the middle-east of about 8.9lakh people. The government of Germany spread these people across the country. In this way, Germany effectively managed the population distribution and also tackled the overburdening of scarce resources. The refugees were also provided with a better life of peace and respect.

If India would have adopted a similar strategy for refugee Management, the problem of overburdening of resources could have been easily tackled by an effective distribution of all migrants across the country.

Instead of wasting money on making detention centers, the government could have provided migrants vocational training. These people could have done the jobs of masons, plumbers, electricians, farm laborers, etc which India is short on. 

Involvement of Judiciary

The present system for granting citizenship and long-terms VISAs is ad-hoc on the Home Ministry. They have standard operating procedures by which they decide whether one should be granted citizenship/VISA or not. And if yes then for how long.

Right now there is no objective and judicial procedure through which one can get citizenship by showing the required credentials. It all depends upon the whim of the Home Ministry to whom they will grant long term VISAs. And to whom they will allow residing in India to fulfill the criteria of citizenship.   

Conclusion

These laws have not given India anything except internet and telecom shutdowns (more than the whole world, 67% according to Forbes), violence, protests, shutting of metro stations, economic loss, vandalism and harm to the international reputation of India. All this in a country with the largest democracy and lengthiest constitution on the whole earth. 

There were much more cost-effective and people-friendly methods to deal with refugees and illegal migrants than NRC and the CAA. The NRC lays down a very uncertain layout for the identification of illegal migrants with a scope of botched implementation. Without any shred of doubt, CAA is unconstitutional and discriminatory. 

Govt can promote the propaganda of the Hindutva and the Hindu Rashtra by using the NRC and CAA. Which are against constitutionalism, secularism, and even Hindu values. Not to forget that the national spy agency has shown concerns about national security because of NRC and CAA,

We don’t want the politics that applauses the disenfranchisement and striping of the rights of one community. We want a politics that speaks to the higher nature of humanity; which speaks to the aspirations of youths; which speaks to the future we seek to build for our children. 

References

Recent Amendment: Citizenship Amendment Act, 2019

Original Act Citizenship Act, 1955

Supplementary rules of citizenship: Citizenship Rules, 2009

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