Legal Articles

Myth and Realty of the latest Amendments to the Citizenship Act

After partition of India on communal basis in 1947, foremost thing for India was to decide about citizenship of the country. In this regard our Constitution makers vide Articles 5 to 9 provided as to who would be Indian Citizen on its commencement. According to Article 5, at the commencement of the Constitution, every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.

On the other hand Article 6 laid down rights of citizenship of certain, persons who have migrated to India from Pakistan and Article 7 correspondingly provided rights of citizenship of those who migrated to Pakistan. Similarly, Article 8 conferred rights of citizenship on certain persons of Indian origin ordinarily residing outside India, provided he has been registered as a citizen of India by the diplomatic or consular representative of India in the country, where he is residing, on an application made by him. Nevertheless, vide Article 9 it is specifically provided that no person, who has voluntarily acquired citizenship of any foreign State, shall be deemed to be Indian citizen by virtue of aforementioned Articles. Article 10 further provided that every person who is or is deemed to be a citizen of India under any of the foregoing provisions, shall, subject to any law made by the parliament, continue to be such citizen.

Citizenship Act, 1955: In this scenario, apparently, though the aforementioned provisions of the Constitution determined who are Indian citizens at the commencement of the Constitution, but there was no provision laying down as to how citizenship of the country could be acquired and/ or under what circumstances it could be terminated. In this regard, Article 11 gave power to the parliament to legislate with respect to acquisition and termination of citizenship and all other matters relating thereto. Therefore, pursuant to that power parliament enacted the Citizenship Act, 1955 (in short Act), with a view to supplement aforementioned constitutional provisions, thereby, providing acquisition of citizenship by birth (section 3), by decent (section 4), by registration (section 6) and by incorporation of territory (section 7). The Act also provided for termination of citizenship by renunciation (Section 8), by voluntary acquisition of citizenship of another country (Section 9) and by deprivation, pursuant to the order of Central Government, under certain conditions (Section 10).

Earlier Amendments: With the passage of time, the Act has been amended on few occasions, in terms of the need of the hour. For example – in 1985, pursuant to agitation by All Assam Students’ Union – a students’ political organization in Assam (which later on formed a political Party Assam Gana Parishad) – against illegal immigrants from Bangladesh, demanding their removal from the voter list, government signed a historic Assam Accord. In terms of this accord all persons of Indian origin, who came to Assam before the 1st January, 1966 and who have been ordinarily resident in Assam ever since shall be deemed to be citizens of India as from the 1st day of January, 1966. Further, every person of Indian origin who came on or after the 1st January, 1966  but before the 25th March, 1971 from territories presently included in Bangladesh and who has been ordinarily resident in Assam ever since and who has been detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, shall, upon registration, be deemed to be a citizen for all purposes as from the date of expiry of a period of ten years from the date of detection as a foreigner.

In 2004, for the first time concept of dual citizenship to the Persons of Indian Origin, belonging to certain specified countries, was incorporated, for which purpose a scheme for compulsory registration of every Indian citizen was introduced. Vide the Citizenship (Amendment) Act 2003 the Central Government made the provision for acquisition of Overseas Citizenship of India (OCI) by the Persons of Indian Origin (PIOs) of 16 specified countries other than Pakistan and Bangladesh. Consequent to the statement of Prime Minister in the Pravasi Bhartiya Diwas, 2005 on Overseas Citizenship of India (OCI) scheme, that the government has decided to grant OCI to all overseas Indians who had migrated from India after 26th January, 1950 as long as their home countries allow dual citizenship under their local laws, an Ordinance called the Citizenship (Amendment) Ordinance, 2005 was promulgated on 28th June, 2005, to extend the scope of OCI to all PIOs  of all countries except Pakistan and Bangladesh. In 2015 amendments were required due to certain lacunae that were noticed during the implementation of previous amendments.

However, recent amendments of the Act (2019) have raised lot of hue and cry, but only for political reasons. A little deeper look into those amendments would make it crystal clear that there is no occasion for the Indian citizens to come on the road and take law into their hands when these amendments have nothing to do with them, rather they make provision for conferring of citizenship on certain minorities (Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities), who have faced persecution on the ground of religion in Pakistan, Afghanistan and Bangladesh, because of which there has been trans-border migration continuously into the Indian territories.

It is a historical fact that after partition on the basis of religion in 1947, India has progressed significantly being a socialist, secular, democratic republic and since then it has arisen as a world power. On the other hand, in other countries, namely, Pakistan, Afghanistan and Bangladesh, social structure has deteriorating day by day on account of communal disharmony and political unstability, in contradiction to India, which is developing as an economic power. This aspect is substantiated from the very fact that Muslim population in India has increased many folds since independence in comparison to Hindu population in other countries which has come down drastically. It is said that in Pakistan now there are barely 3% of Hindus, which were more than 20% at the time of partition. These statistics themselves are sufficient to show India’s concern about the aforementioned minorities, who have fears about persecution even in their day to day life in those countries, since their right to practice, profess and propagate their religion has been obstructed and restricted. Resultantly, they have fled to India, so as to seek shelter and have stayed here, even if their travel documents have expired or are incomplete. It is in these circumstances that the Indian government vide notifications dated 07.09.2015 and 18.07.2016 has exempted such migrants from the adverse penal consequences, resulting from Passport (Entry Into India) Act, 1920 and the Foreigners Act, 1946 and rules or orders made there under. Accordingly, the Indian government also made these migrants eligible for long term visa to stay in the country vide orders dated 08.01.2016 and 14.09.2016.

It is submitted that, the present amendments are part of government’s aforementioned efforts to help these persecuted minority communities, that a cut of date of 31.12.2014 has been kept to govern their citizenship matters in India. For this purpose, the arrangement has been made through the present amendments to grant the certificate of registration or certificate of naturalization subject to certain conditions to them, as provided under the Act. As a matter of fact, many persons from these minority communities have been applying for Indian Citizenship under section 5 of the Act, but in the absence of any proof of their Indian origin, they have failed to get the same. Therefore, they are left with no option but to apply for citizenship by naturalization under section 6 of the Act, which prescribes eleven years residency as a qualification for that purpose. Hence, even on that count they are denied many opportunities and advantages that may accrue only to the Indian Citizens, in spite of the fact that they intend to stay in the country permanently. Therefore, the purpose of the present amendment is to reduce that period from 11 years to 5 years. Another noteworthy feature of these amendments is that the special provision in respect of citizenship to the said minorities shall not be applicable to tribal areas of Assam, Meghalaya, Mizoram or Tripura, objective being to protect the Constitutional guarantee given to indigenous population of these states.

These amendments are not unconstitutional: However, one section of the society, on account of their vested interests, are bent upon in spreading rumors that these amendments are unconstitutional and violate right to equality guaranteed under Article 14 of the Constitution. It is argued that the present classification has no nexus with the object sought to be achieved by the legislation, which is factually incorrect. It has also been said that The Statement of Objects and Reasons accompanying the Act casts aspersion on Pakistan, Afghanistan and Bangladesh which is diplomatically not wise. In this regard, it is submitted that, fallacy of this argument lies in the approach with which the whole problem, in respect of migration of these communities into our country, is being looked upon, while giving more weightage to diplomatic ties, rather looking at it with a humanistic approach. Moreover, one fails to understand, as to how object sought to be achieved has no nexus with the aforementioned reasonable classification. One may ask, whether it is so, only because Muslims have not been included in this identified class? If answer is in the affirmative, abovementioned contention of Constitutional invalidity goes, since in that event nexus between the object of the legislation with the reasonable/ rational  classification stands vindicated
Therefore, on account of following reasons one may say there is no reason to get agitated on these amendments:

• these amendments do not effect citizens of India in any manner whatsoever;
• rather, these amendments are intended to help the persons belonging to minority communities from Pakistan, Afghanistan, and Bangladesh, namely Hindu, Sikh, Buddhist, Jain, Parsi and Christian, who have faced persecution on the ground of religion in those countries and have no place for shelter except their parent country, (undivided) India, from where they originated prior to partition;
• thus these amendments rather substantiate humanistic characteristic of our culture, in contradiction to political ideology of aforementioned countries, which is based on discrimination on account of caste, creed and religion;
• these amendments are not based on any communal disharmony, rather is directed to counter the same, pursuant to which these minority communities are being discriminated and persecuted in those countries, which has already led to substantial decrease in their population, in contradiction to our country where it is other way round;
• last, but not the least the date of 31.12.2014 has been kept as a cutoff date only for the purpose of exempting persons belonging to such minorities from not being treated as illegal migrants in terms of section 2(1)(b) of the Act, if they have entered into the country prior to that date. This is simply to enable them to qualify for naturalization in terms of third schedule to the Act;

Therefore, it is wrong interpretation of the said amendments to the public by the certain miscreants, for the purpose of gaining political mileage, that has created all this furor, which at the end of the day is in the larger interest of the society and in-consonance with our constitutional ideals and culture.

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