LEGITIMIZING THE ILLEGITIMATE – CAA and NRC

INTRODUCTION TO CITIZENSHIP OF INDIA

Citizenship is the status of the person as being a legitimate member of a sovereign state. Articles 5-11 of the Constitution of India defines citizenship laws of the people residing within the territory of India. The term Citizenship ensures all the legitimate members of the state to enjoy the rights enshrined in the Constitution such as political and civil rights which cannot be enjoyed by the person not having the citizenship of that state. India being the Sovereign and Secular state with around 135 crores of population making it the second most populous Country in the world after China has been subject to many complications relating to citizenship especially in the state of Assam where it has been claimed that there have been many illegal immigrants with insufficient legal documents to prove their citizenship residing there, leading to the loss of demography of the north-eastern citizens of Assam. It has further been claimed that many of the illegal immigrants have found place in the electoral list which has provided them with all the Constitutional and Legal rights similar to that of the citizens whose forefathers have been born here and they continue to live in the country but these things created anger in the original citizens of Assam and a group was formed by the Assamese activists that had merged together comprising of Prafulla Kumar Mahanta, President of All Assam Students Union, Bhrigu Kumar Phukan, General Secretary, All Assam Students Union, Biraj Kumar Sarma, General Secretary, All Assam Gana Sangram Parishad to start an agitation against granting citizenship to these illegal immigrants the agitation was sometimes peaceful and sometimes it took the face of violent activities by the activists resulting in death of many and arrest of many people by the police. It took six years by Government to sign the historic agreement between the Government of India and the Assamese leaders. In 1985, the All Assam students Union and All Assam Gana Sangram Parishad after a six-year long agitation against the citizenship and deportation of these illegal immigrants compelled the then Rajiv Gandhi led INC government to sign Assam Accord to detect and delete the names of all the illegal immigrants from the electoral list of the state of Assam. Rajiv Gandhi the then Prime Minister further dropped the cases against the Activists who took part in the agitation and the government moreover, provided compensation to those died during the protest. However, Prime Minister Rajiv Gandhi in the Assam Accord put several clauses for the detection, deportation and deletion of the names of the illegal immigrants that entered India from Bangladesh which are as follows;

Clause 5 of Assam Accord: Foreigners Issue:

5.1 For purposes of detection and deletion of foreigners, 1.1.1966 shall be the base date and year.

5.2 All persons who came to Assam prior to 1.1.1966, including those amongst them whose name appeared on the electoral rolls used in 1967 elections, shall be regularized.

5.3 Foreigners who came to Assam after 1.1.1966 (inclusive) and up to 24th March 1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964.

5.4 Names of Foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Officers of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939.

5.5 For this purpose, Government of India will undertake suitable strengthening of the governmental machinery.

5.6 On the expiry of a period of ten year following the date of detection, the names of all such persons which have been deleted from the electoral rolls shall be restored.

5.7 All persons who were expelled, earlier, but have since re-entered illegally into Assam, shall be expelled.

5.8 Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with law. Immediate and practical steps shall be taken to expel such foreigners.

5.9 The Government will give due consideration to certain difficulties expressed by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983.

Clause 6: Constitutional, Legislative & Administrative safeguards:

6. Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.

Clause 7: Economic Development:

7. The Government takes this opportunity to renew their commitment for the speedy all-round economic development of Assam, so as to improve the standard of living of the people. Special emphasis will be placed on education and science & technology through establishment of national institutions.

Clause 8:

8.1 The Government will arrange for the issue of citizenship certificates in future only by the authorities of the Central Government.

8.2 Specific complaints that may be made by the AASU/AAGSP about irregular issuance of Indian Citizenship Certificates (ICC) will be looked into.

Clause 9: Security of International Border:

9.1 The international border shall be made secured against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places. Patrolling by security forces on land and riverine routes all along international border shall be adequately intensified. In order to further strengthen the security arrangements, to prevent effectively future infiltration, an adequate number of check posts shall be set up.

9.2 Besides the arrangements mentioned above and keeping in view security considerations, a road all along the international border shall be constructed so as to facilitate patrolling by security forces. Land between border and the road would be kept free of human habitation, wherever possible. Riverine patrolling along the international border would be intensified. All effective measures would be adopted to prevent infiltrators crossing or attempting to crass the international border.

Clause 10: Prevention of Encroachment of Government lands:

10. It will be ensured that relevant laws for prevention of encroachment of Government lands and lands in tribal belts and blocks are strictly enforced and unauthorized encroachers evicted as laid down under such laws.

Clause 11: Restricting acquisition of immovable property by foreigners:

11. It will be ensured that the relevant law restricting acquisition of immovable property by foreigners in Assam is strictly enforced.

Clause 12: Registration of births and deaths:

12. It will be ensured that Birth and Death Registers are duly maintained.

Clause 13:

13. The All Assam Students Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) call off the agitation assure full co-operation and dedicate themselves towards the development of the country.

Clause 14:

14. The Central and the State Government have agreed to:

(a)  Review with sympathy and withdraw cases of disciplinary action taken against employees in the context of the agitation and to ensure that there is no victimization;

(b)  Frame a scheme for ex-gratia payment to next of kin of those who killed in the course of the agitation;

(c)  Give sympathetic consideration to proposal for relaxation of upper age limit for employment in public services in Assam, having regard to exceptional situation that prevailed in holding of academic and competitive examinations, etc. in the context of agitation in Assam;

(d)  Undertake review of detention cases, if any, as well as cases against persons charged with criminal offences in connection with the agitation, except those charged with commission of heinous offences;

(e)  Consider withdrawal of the prohibitory orders/ notifications in force, if any.

Clause 15:

15. The Ministry of Home Affairs will be the nodal Ministry for the implementation of the above[1]

THE CITIZENSHIP ACT OF 1955 AND AMENDMENTS MADE THEREUNDER

India having the unitary form of government has a feature of single citizenship which means a citizen of India is a citizen of all Indian territories. At the time of partition many Hindus and Muslims migrated to and from Pakistan and at that time on seeing the conditions of the refugees it was necessary to take appropriate decisions on citizenship. During the partition, the political and social lifestyle of the country as well as of the people worsened because of the communal tensions between Hindus and Muslims that triggered our Constitution makers to adopted the feature of Single Citizenship in order to avoid Regionalism, so that the entire population of the country come under one roof and call themselves Indians and could enjoy all the privileges that our Constitution makers have provided in the Constitution. Single citizenship ensures political and social equality amongst people and it further ensures that Government of India is for the entire Indian territory and not of a particular state. The Act of 1955 was enacted to provide for acquisition and determination of Indian citizenship. This act of 1955 has provided provisions for getting the citizenship by several means such as Citizenship by birth under Section 3, Citizenship by descent under Section 4, citizenship by Registration under Section 5, Citizenship by Naturalization under Section 6, Citizenship by Incorporation of territory under Section 7. It further provides for the provision for Termination of Indian citizenship with various sub-clauses such as Renunciation of citizenship and Deprivation of citizenship. Moreover, the Act provides for the provision of maintaining a National Register of Indian citizens under section 14(a) of the Citizenship Act of 1955 for the purpose of establishing a National Registration Authority with various clauses such as Renunciation of Citizenship under Section 8, Termination of Citizenship under Section 9, Deprivation of Citizenship under Section 10. The Citizenship Act of 1955 contains in total of 19 Sections along with sub sections and clauses.             Section 6 (A) of the Citizenship Act of 1955 was incorporated after the historic Assam Accord which was signed between the then Prime Minister Rajiv Gandhi and Prafulla Kumar Mahanta, President of All Assam Students Union, Bhrigu Kumar Phukan, General Secretary, All Assam Students Union, Biraj Kumar Sarma, General Secretary, All Assam Gana Sangram Parishad in 1985 that provides for the special provision of Indian Citizenship in the State of Assam which reads as

(a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amend­ment) Act, 1985;

(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Trib­unal constituted under the said Order;

(c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985;

(d) a person shall be deemed to be of Indian origin, if he, or either of his parents for any of his grandparents was born in undivided India;

(e) a person shall be deemed to have been detected to be a for­eigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority con­cerned.

(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.

(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who—

(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c) has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detec­tion, his name shall be deleted therefrom. Explanation.—In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall,—

(i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;

(ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal consti­tuted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference.

(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be enti­tled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.

(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner.

(6) Without prejudice to the provisions of section 8, —

(a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985, for year a declaration that he does not wish to be a citizen of India, such person shall not be deemed to have become a citizen of India under that sub-section;

(b) If any person referred to in sub-section (3) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement the Citizenship (Amendment) Act, 1985, for year or from the date on which he has been detect­ed to be a foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of that sub-sec­tion and sub-sections (4) and (5), it shall not be necessary for such person to register himself under sub-section (3). Explanation. —Where a person required to file a declaration under this sub-section does not have the capacity to enter into a contract, such declaration may be filed on his behalf by any person competent under the law for the time being in force to act on his behalf.

(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person—

(a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India;

(b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, for year under the Foreigners Act, 1946 (31 of 1946).

(8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force.][2]

The Citizenship Act,1955 have been amended 6 times till date starting from 1986 by Rajiv Gandhi led-INC government, 1992 by P.V Narsimha Rao led-INC government, 2003 by Atal Bihari Vajpayee led- BJP government, 2005 by Manmohan Singh led- INC government, 2015 and 2019 by Narendra Modi led- BJP government. The recent amendment of the Citizenship Act was made in 2019 by the Narendra Modi led- Bharatiya Janta Party government which talked about Citizenship with subject to religiously persecuted minorities from three different countries namely Pakistan, Afghanistan and Bangladesh with various clauses which reads as

In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:— “Provided 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;”. The amendment of 2019 included all the major religions of India but excluded one major religion Islam which had created aggression and criticism by the people and the Indian National Congress and other Political parties leading to violent protests by various IIT’s , Banaras Hindu University in UP, Aligarh Muslim University in UP, Jamia Milia Islamia University in Delhi and  several other parts of the country especially in Assam by saying the Act divisive and Anti-Muslim in nature.

RELATIONSHIP TO NATIONAL REGISTER OF CITIZEN

This law must be seen with the viewpoint if NRC

when NRC was carried out in the state of Assam, a population of 19 lakhs couldn’t find their names in the Register and out of which 5.44 lakhs are Bengali Hindus and rest are the Muslims. Thus, through the Citizenship (Amendment) Act, 2019 the Government will treat the Hindus of Assam as refugees and will provide them the citizenship of India accordingly and the Muslims will be treated as intruders and will be prosecuted under the foreigner’s Tribunal.

As per the CAA, 2019 the prosecution against the Non-Muslims will get abated and the Muslims will have to face prosecution. This discrimination amongst citizens of the country is in itself displays the constitutionality of the CAA,2019

CONSTITUTIONALITY OF THE CITIZENSHIP AMENDMENT ACT,2019

The Citizenship Amendment Act,2019 was passed by the Lok Sabha on 8th January 2019 with 293 MPs voted in favor and 85 in against the Bill and Rajya Sabha on 11th December 2019 with 125 MPs voting in favor of the Bill and 105 in against. The Act followed widespread criticism from the people of India and from the Opposition Political Parties. The Act specifically excluded one major religion Islam which made it more worth criticizing especially by Muslims. Articles are mentioned that is relevant to the Citizenship Amendment Act which are as follows;

Part III Article 14;

 ‘State shall not deny to any person equality before the law and equal protection of laws within the territory of India, prohibition of Discrimination on the grounds of religion, race, caste, sex, place of birth.

Article 15;

 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

(a) access to shops, public restaurants, hotels and places of public entertainment; 

(b) the use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Clause 6 of the Assam Accord reads: “Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.”.

Article 13(2);

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

As per the above Articles and Sections of the Indian Constitution and Assam Accord, the Citizenship Amendment of 2019 blatantly violates the Constitutional Policies of the country reason being;

  1. It is a blatant violation of Article 14 because of the exclusion of the religion Islam as the central Government cannot make any law that discriminates whether a citizen or a non-Citizen on any ground.
  2. It treats equal persons unequally and creates a regime of citizenship that is predicated along religious lines which violates the inherent idea of Secularism that is a part of basic structure of the Constitution which cannot be amended as decided in the case of Keshavananda Bharati v State of Kerala.
  3. Article 14 of the Indian Constitution clearly mentions that Class Legislation is forbidden i.e. Any law which applies to certain class or person and even to state or territory is forbidden. While the Article 14 forbids Class Legislation on the other hand it permit the state to make certain kinds of classification because not everybody is situated equally therefore, to achieve the substantive aim of equality will sometime have to distinguish between people and will have to provide special benefits to certain categories of people but the government can only do so by passing 3 tests as per the guidelines of the Supreme Court which are:-
  4. It requires a legitimate state aim
  5. It requires that the classification is based on intelligible differentia
  6. It requires that the differentia drawn has a rational nexus with the objective of the law.

The above three tests have been clearly failed because it is neither predicated on a Legitimate State aim nor does it make Reasonable Classification.

[B] CAA is a blatant violation of Article 13(2) which states The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

CONCLUSION & CLOSING STATEMENT

When the Constitution of India was in making K.M Pathak Rukund of the Constituent Assembly proposed that the preamble of our Constitution must begin with Bhagwan/ Khudah/God. Many of the other members including the President of the Constituent Assembly Dr. Rajendra Prasad disagreed and found this very inappropriate and said that the preamble cannot begin with either of the words as proposed by KM Pathak Rukund. As a result, voting took place and Dr. Rajendra Prasad won.

This shows the secular minds of our Constitution makers and this was the level of Politics where every religion was kept on the same track and no religion was preferred over the other declaring the country secular meaning no religion of its own. However, the Bharatiya Janta Party which has been ruling India since past 6 years must take an important stand on this historic amendment by making CAA available to the Muslims as well because by taking such a fact into consideration that there are many Muslim sects in Pakistan, Bangladesh and Afghanistan which are a subject of religious persecution. There are Ahmadiyya Muslims in Pakistan and Bangladesh which are being persecuted, there is a population of Hazarah community in Afghanistan which are also being persecuted on the Religious Grounds for centuries. If the question arises on the minorities which are a subject of persecution on the religious grounds then nobody can doubt on the question on how china brain washes the UIGHURS in detention camps for many years despite of repeated denial by the Chinese Authorities  of the facts that these people are not being ill-treated rather they are offered voluntary Education and training but the official documents seen by the BBC Panorama show how the inmates are locked up, indoctrinated and punished, the detainees are awarded points for their Ideological Transformation. If the Government of India grants citizenship to these persecuted Muslim sects along with the ones from the other aforementioned religions then it would make the democracy and plurality of this country even stronger and groom the image and reputation of India globally because in a country where about majority of the population are of Hindus and still the country is labelled as Secular and after making CAA available to Muslims it would generate positive environment in India because India would be the only country that doesn’t promote hatred and persecution on any ground and is ready to admit anyone who wishes to seek for citizenship by following all the legalities.

Moreover, if the facts are taken into consideration regarding population of this country then at present there is no need to have this law because in India where 135 crores is the population and 270 million is the figure that stays under dire poverty with lots of other hardships including mal-nutrition then people who will come and seek shelter in India from the aforementioned countries will only pile up and make it difficult for the government to take care of them because the existing figures are way more difficult to control and after admitting these persecuted sects the problem for the government would ignite regarding their accommodation if allowed to have the citizenship. It will only result in creating hardships not only for these people but also for the government.

Therefore, if religious persecution is really urging the government to have this law then it should really have to make certain changes by adding one more religion i.e. Islam. Because excluding the religion Islam in The Citizenship (Amendment) Act, 2019 clearly shows that the above law creates a regime of Citizenship that is predicated along religious line and is a blatant violation of our Constitutional policies and should make the provisions of the CAA available to Muslims.


REFERENCE

[1]. https://assam.gov.in/en/main/ASSAM ACCORD

[2] indiacode.nic.in

Aishwarya Says:

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