Debriefed: A breakdown of the Citizenship Amendment Bill, 2019 (and a related Supreme Court challenge)

Debriefed: A breakdown of the Citizenship Amendment Bill, 2019 (and a related Supreme Court challenge)

The Citizenship Amendment Bill, 2019 was allowed to be introduced in the Lok Sabha today, amidst concerns expressed by opposition parties.

In Parliament today, Union Home Minister Amit Shah sought to introduce the Bill which had been green signalled by the Union Cabinet last week. However, various Members of Parliament including Shashi Tharoor and Asaduddin Owaisi opposed the introduction of the Bill on the ground that it went against the spirit of the Constitution.

The introduction of the Bill was then put to vote in the House, with 293 voting in favour as against the 82 dissenters.

The Bill, which seeks to exclude Muslims from the ambit of minorities who will not be treated as illegal migrants when they try to enter India, has been criticised as being violative of Article 14 of the Constitution, and opposed to the concept of secularism.

So, what are the other proposed changes the Bill seeks to make to the Citizenship Act, 1955? Will the Supreme Court be called upon to intervene? This article attempts to take a deeper dive.

History of the Bill

The Bill was first introduced back in 2016, and took three years to be passed by the Lok Sabha. However, the efforts of the Centre to pass the proposed legislation in the Upper House were stymied, and the Bill lapsed.

A newer version of the Bill has now been introduced in the Lok Sabha.

What is the legal position on Illegal Migrants in India?

Presently under the Citizenship Act, anyone who does not have a valid passport or who has stayed in India for a period beyond the permitted time, is described as an “illegal migrant”, irrespective of nationality or religion. Such illegal migrants are liable to be prosecuted under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920. 

However, the Centre exempted those illegal migrants from the ambit of the two Acts who were Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, provided they reached India on or before December 31, 2014.

The Passport (Entry into India) Amendment Rules, 2015 and The Foreigners (Amendment) Order, 2015, which effectively made these changes, is currently under challenge before the Supreme Court. More on this later.

The latest version of the Citizenship Amendment Bill aims to makes these classes of migrants eligible for Indian citizenship.

How does an “Illegal Migrant” become a citizen of India?

One of the ways an otherwise illegal migrant may be granted Indian citizenship is by naturalisation, provided the conditions under the Third Schedule of the Act are fulfilled.

Under the Third Schedule, a person who makes an application for citizenship through naturalisation will be granted the same only if he has been residing in India or has been in government service in India throughout the period of twelve months immediately preceding the application.

Another condition is that such a person needs to have resided in India for eleven years out of the fourteen years preceding the application for naturalisation. In effect, a fresh applicant needs to wait for eleven years in order to become a citizen through the naturalisation route.

How does the Citizenship Amendment Bill aim to change this?

The Bill seeks to add a proviso to the definition of “illegal migrant” under Section 2 of the Citizenship Act. The proposed proviso states thus:

“Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have 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 order made thereunder, shall not be treated as illegal migrants for the purposes of that Act.”

In effect, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants under the Act.

Another change is that the Bill seeks to reduce the number of years required for naturalisation for the above mentioned communities. The current requisite period of residence in India for eleven years will be cut down to five years. The Third Schedule is sought to be amended with the following proviso:

“Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.”

What is the rationale behind the Bill?

In the Statement of Objects and Reasons of the Bill, the Central government claims that many Hindu, Sikh, Buddhist, Jain, Parsi and Christian persons have been facing religious persecution in Pakistan, Afghanistan and Bangladesh.

“Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.”

Those people unable to prove Indian origin have been forced to apply for citizenship through naturalisation, which takes eleven years, it is stated.

“This denies them many opportunities and advantages that may accrue only to the citizens of India, even though they are likely to stay in India permanently.”

Therefore, the government seeks to allow these people to apply for Indian citizenship if they can establish their residency in India for five years.

Why the controversy?

A glaring omission in the 2019 Citizenship Amendment Bill, and in the amendments to the other two Acts, is that members of the Muslim community have been left out of the proposed amendments. It has been claimed that this move goes against the grain of Article 14 of the Constitution, and against the ideal of secularism, which has been held to be part of the Basic Structure of the Constitution.

In the petition filed in the Supreme Court by Nagarikatwa Aain Songsudhan Birodhi Mancha (Forum Against Citizenship Act Amendment Bill), challenging the 2015 amendment orders to the two Acts, it is contended that these subordinate legislations have diluted the meaning of “illegal migrant” under the Citizenship Act. The petition states,

The sub-ordinate legislation impugned herein are however, unprecedented, in the sense that never before has religion been specifically identified in the citizenship law as the ground for distinguishing between citizens and non-citizens. It has introduced religion as a new principle into the citizenship law and can be conveniently branded as “communally motivated humanitarianism”.”

What are the other proposed changes?

The Citizenship Amendment Bill provides that the amendments shall not apply to tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution. The area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873, has also been exempted.

Another change is with respect to cancellation of registration of an Overseas Citizens of India (OCI) cardholder. Under Section 7D of the Act,  the following provision is sought to be added:

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for time being in force as may be specified by the Central Government in the notification published in the Official Gazette.”

In effect, an OCI cardholder’s registration can be cancelled if he violates the provisions of any law.

Will the Supreme Court intervene?

Assuming that the 2019 Bill receives assent in the Rajya Sabha during this session and becomes a law, a question to be asked is if the Supreme Court will intervene.

As stated earlier, a challenge to the Passport (Entry into India) Amendment Rules, 2015 and The Foreigners (Amendment) Order, 2015 is already pending before the Apex Court.  When the matter came up for hearing in January this year,  a Bench headed by then Chief Justice of India Ranjan Gogoi stated that it would be kept pending until Parliament decides on the Citizenship Bill.

When the case was heard on January 14 this year, the Bill had been passed in the Lok Sabha, before it lapsed. CJI Gogoi – who was at the forefront of setting in motion the NRC Assam exercise – had opined thus:

“…If the Bill is passed in Parliament, will anything survive in this matter?…If the Bill is not passed by Rajya Sabha, then this petition can be entertained.”

There is also the inevitability of a fresh petition being filed to challenge the 2019 Amendment Bill.

Read the Citizenship Amendment Bill, 2019:

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