11th December 2019 : The Hindu Editorials Notes : Mains Sure Shot
Question – Critically evaluate the Citizenship Amendment Bill (CAB), 2019, and suggest the way ahead.(250 words)
Context – The Bill has been passed in the Lok Sabha.
Who is a citizen?
- Before discussing citizenship we must understand who is a citizen.
- Citizen is a person who is a member of a particular country and who has rights because of being born there or because of being given rights.
- So citizenship is inherently associated with rights and duties.
What is citizenship?
- Citizenship on the other hand is the state of being vested with the rights, privileges, and duties of a citizen.
- There are two ideas of citizenship – citizenship based on territory and second is citizenship on the basis of community-territory link.
- The Citizenship Amendment Bill, 2019, seems to be based on the second notioni.e. not all those who are residents are a part of the nation, and not all outside the territory are outside the nation. But India’s founding fathers and public opinion overwhelmingly rejected this notion at the time of Independence, but an Islamic mirror image of it was born into reality as Pakistan.
Understanding the Bill in detail:
What is the Citizenship Amendment Bill, 2019?
- The Citizenship (Amendment) Bill 2019, seeks to give Indian nationality to non-Muslim refugees from Pakistan, Bangladesh and Afghanistan.
- The Bill seeks to amend the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, who have lived in India without documentation. They will be granted fast-track Indian citizenship in six years. So far, 12 years of residence has been the standard eligibility requirements for naturalisation.
Who is eligible?
- The proposed 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 cut-off date for citizenship is December 31, 2014, which means the applicant should have entered India on or before that date. Indian citizenship, under present law, is given either to those born in India or if they have resided in the country for a minimum of 11 years.
- The Bill also proposes to incorporate a sub-section (d) to Section 7, providing for cancellation of Overseas Citizen of India (OCI) registration where the OCI card-holder has violated any provision of the Citizenship Act or any other law in force.
The government’s argument:
- Centre says these minority groups have come escaping persecution in Muslim-majority nations.
Is the argument completely justified?
- the logic is not consistent – the bill does not protect all religious minorities, nor does it apply to all neighbours. The Ahmedia Muslim sect and even Shias face discrimination in Pakistan.
- Rohingya Muslims and Hindus face persecution in neighbouring Burma, and Hindu and Christian Tamils in neighbouring Sri Lanka. The government responds that Muslims can seek refuge in Islamic nations, but has not answered the other questions.
- Also the argument that the Bill would not have been necessary if the Congress did not agree to Partition on the basis of religion. However, India was not created on the basis of religion, Pakistan was. Only the Muslim League and the Hindu Right advocated the two nation theory of Hindu and Muslim nations, which led to Partition. All the founders of India were committed to a secular state, where all citizens irrespective of religion enjoyed full membership. Either way, this logic for the CAB also collapses because Afghanistan was not part of pre-Partition India.
Exceptions to the Bill:
- CAB won’t apply to areas under the sixth schedule of the Constitution – which deals with autonomous tribal-dominated regions in Assam, Meghalaya, Tripura and Mizoram. The bill will also not apply to states that have the inner-line permit regime (Arunachal Pradesh, Nagaland and Mizoram).
Is it same like NRC?
- The National Register of Citizens or NRC that we saw in Assam targeted illegal immigrants. A person had to prove that either they, or their ancestors were in Assam on or before March 24, 1971. NRC, which may be extended to the rest of the country, is not based on religion unlike CAB.
Why is it being debated?
- The CAB ringfences Muslim identity by declaring India a welcome refuge to all other religious communities. It seeks to legally establish Muslims as second-class citizens of India by providing preferential treatment to other groups.
- This violates the Constitution’s Article 14, the fundamental right to equality to all persons. This basic structure of the Constitution cannot be reshaped by any Parliament.But the government maintains that it does not discriminate or violate the right to equality.
Unintended Consequences:
- The seemingly unconstitutional provisions of the CAB will deny equal protection of laws to similarly placed persons who come to India as “illegal migrants” but in fact grant citizenship to the less deserving at the cost of the more deserving.
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- The provisions of CAB might lead to a situation where a Rohingya who has saved himself from harm in Myanmar by crossing into India will not be entitled to be considered for citizenship, while a Hindu from Bangladesh, who might be an economic migrant and have not faced any direct persecution in his life, would be entitled to citizenship.
- Similarly, a Tamil from Jaffna escaping the atrocities in Sri Lanka will continue to be an “illegal migrant” and never be entitled to apply for citizenship by naturalization.
Combined Effect of CAB and NRC:
- There has been a proposal for a nationwide NRC. If the NRC carves out paths to statelessness for groups that are disfavoured, the Citizenship Amendment Bill creates paths to citizenship for preferred groups.
- Though it has been unequivocally asserted in Parliament that the NRC and the CAB are unrelated, the cumulative import of these developments is the entrenchment of a conception of citizenship inconsistent with that adopted at Independence.
- The CAB and the NRC will lead to a shift to the “racial citizenship” regime from the ideal principle of birth-based citizenship.
Similar instances in other countries:
- The ongoing attempts in India have striking parallels with recent events in the U.S. An executive order in 2017 banned travelers from seven Muslim-majority countries from entry. The order also had a provision, to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality”. This would have excluded Muslims from Muslim-majority countries.
The larger concern:
- Political boundaries are artificial and imagined barriers to human movement.
- Most violence in the modern history of humankind emanated from attempts to enforce boundaries that purportedly protect citizens and eject aliens. The Holocaust and the Palestinian dispossession are two egregious examples. Ascribing, and claiming legitimacy for a particular community-territory link is fundamentally political which can lead to the disintegration of the long-held aspect of unity in diversity in India.
Conclusion:
- By prioritising Hindus in matters of citizenship as per law, it seeks to make India a Hindu homeland, and is the first de jure attempt to make India a Hindu Rashtra. If India is to stay a country for Indians and not for Hindu Afghans, Hindu Pakistanis and Hindu Bangladeshis and eventually for Hindu Russians, Hindu Americans, CAB should not be passed in Parliament.
Way ahead:
- The government must evaluate all aspects of the bill and pay attention to the criticism being done.
- It is also a test of the judiciary. The judiciary being a guardian of the constitution needs to play its vital role.
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