The Citizenship Amendment Bill, 2019

It was an act to further amend the Citizenship Act, 1955. Through it, 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;".

This was maybe the only significant change in the Act. Similar changes have been made before in
the Citizenship act which granted citizenship to illegal immigrants from Bangladesh, Pakistan and
Afghanistan who were compelled to seek shelter in India due to religious prosecution or fear of
religious prosecution. They are not classified as illegal immigrants and remain eligible for
citizenship.

An illegal immigrant is a foreigner who has entered the Indian territory through any means without
any valid documents and has overstayed a certain time period as proved by the amendment on
citizenship in 2003.

The CAA, 2019 only talks about providing an opportunity to the 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 to get a valid citizenship.

The Amendment is only extended to the certain communities because they have faced persecution
in these three Islamic majority countries. According to a research done by Pew Research Center,
there were 50 Muslim majority countries, and World Atlas recognized 45 ‘Islamic Countries’. And
if we compare it the above-mentioned religious groups excluding Christians, they only have 2
countries with Hindu majority.
As the Hindu, Sikh, Buddhist, Jain, Parsi people make up the minority in Bangladesh, Pakistan
and Afghanistan they have faced severe prosecution.

Hinduism only makes up 8.7% of the total demographic of Bangladesh. In the political aspect all
the major political parties have fielded Hindu candidates. In the current Jatiyo Sangshad, out of
350 members, there are only 13 Hindus: most of them from the Awami League. And during 1990’s
due the rise of more Islamist parties, many Hindus have been intimidated and attacked. During the
Bangladeshi Liberation war, Hindus were labeled as enemies, even after independence, the Hindus
were branded as Indian Stooges and unworthy citizens.

The Bangladeshi Liberation War resulted in one of the biggest genocide of 30,00,000 people. As
many as 2.4 million Bengali Hindus were killed by the Pakistani Army during the Liberation War
and most of the Bengali Hindu-owned businesses were permanently destroyed. The historic Ramna
Kali Temple in Dhaka and the century-old Rath at Dhamrai were demolished and burned down by
the Pakistani Army.

An article in Time magazine dated 2 August 1971, stated "The Hindus, who account for three-
fourths of the refugees and a majority of the dead, have borne the brunt of the Muslim military
hatred."

Senator Edward Kennedy wrote in a report that was part of United States Senate Committee on
Foreign Relations testimony dated 1 November 1971, "Hardest hit have been members of the
Hindu community who have been robbed of their lands and shops, systematically slaughtered, and
in some places, painted with yellow patches marked "H". All of this has been officially sanctioned,
ordered and implemented under martial law from Islamabad". In the same report, Senator Kennedy
reported that 80% of the refugees in India were Hindus and according to numerous international
relief agencies such as UNESCO and World Health Organization the number of East Pakistani
refugees at their peak in India was close to 10 million. Given that the Hindu population in East
Pakistan was around 11 million in 1971, this suggests that up to 8 million, or more than 70% of
the Hindu population had fled the country.

The Pulitzer Prize–winning journalist Sydney Schanberg covered the start of the war and wrote
extensively on the suffering of the East Bengalis, including the Hindus both during and after the
conflict. In a syndicated column "The Pakistani Slaughter That Nixon Ignored", he wrote about
his return to liberated Bangladesh in 1972. "Other reminders were the yellow "H"s the Pakistanis
had painted on the homes of Hindus, particular targets of the Muslim army".

Hindus were first attacked in mass on 1992 by Islamic fundamentalists. More than 200 temples
were destroyed. Hindus were attacked and many women were raped and killed. Taslima
Nasrin wrote her novel Lajja (The Shame) based on this persecution of Hindus by Islamic
extremists. The novel centers on the suffering of the patriotic anti-Indian and pro-Communist
Dutta family, where the daughter is raped and killed while financially, they end up losing
everything.

Hindu women have also been known to be victims of kidnapping and forced conversion to Islam.
A member of the Human Rights Commission of Pakistan claimed in 2010, though without official
record, that around 20 to 25 girls from the Hindu community, along with people from other
minorities like Christians, are abducted every month and forcibly converted. Many Hindus are
continuing to flee Pakistan even now due to persecution. Krishan Bheel, a Hindu member of
the National Assembly of Pakistan, came into the news recently for manhandling Qari Gul Rehman
after being taunted with a religious insult. In 2006, a Hindu temple in Lahore was destroyed to
pave the way for construction of a multi-storied commercial building. When reporters from
Pakistan-based newspaper Dawn tried to cover the incident, they were accosted by the henchmen
of the property developer, who denied that a Hindu temple existed at the site.

Meanwhile CAA itself does not mention the prosecution of people anywhere, and only talks about
the already prosecuted people. The country has also provided relief all religions from different
countries. Illegal immigrants-who cross the border without any paperwork-can't apply for
citizenship and, when caught, face prosecution.

This act was challenged by a display of non-compliance by mass protests, each fighting for a
different cause without properly understanding the cited legislature. The people in Assam is
protesting because they believe the amendment violates the Assam accord. The Assam Accord was
a Memorandum of Settlement signed between representatives of the Government of India and the
leaders of the Assam Movement. The protestors in the Assam movement demanded the
identification and deportation of all illegal foreigners – predominantly Bangladeshi immigrants.
They feared the past and continuing large scale migration was overwhelming the native population,
impacting their political rights, culture, language and land rights.
After the amendment people in Assam fear CAB will lead to lakhs of Hindus from Bangladesh
swamping indigenous communities, burdening resources and threatening their language, culture
and tradition. CAB has a 2014 cut-off date but protesters say Assam bore the brunt of
immigrants from 1951 to 1971, while other states did not, and it is unfair to impose more on the
state. Protesters say they do not trust the Centre and CAB will undo the Assam Accord.

There have been violent protests because people think that CAB is attempt to make India a
totally ‘Hindu Rashtra’ as they don’t allow the illegal immigration of Muslims which constitute
of the major demographics of that nation however it doesn’t affect the legal Indian Muslim
citizens.

There is nothing wrong with counting the legal citizenry of the country which is the main
purpose of NRC. But if it becomes a basis for discrimination or put to other uses, then it is
certainly problematic. Besides, it will be an enormous exercise given the size of our population
and other complexities.

COMPARISION OF CITIZENSHIP AMENDMENT ACT OF 2019 WITH THE

CITIZENSHIP ACT, 1955

CITIZENSHIP AMENDMENT BILL, 2019 CITIZENSHIP ACT, 1955

The Bill adds two additional provisions on
citizenship to illegal migrants belonging to these
religions from the three countries: Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians.
The Bill says that on acquiring citizenship: (i) such
persons shall be deemed to be citizens of India
from the date of their entry into India, and (ii) all
legal proceedings against them in respect of their
illegal migration or citizenship will be closed.
The Act prohibits illegal migrants from acquiring
Indian citizenship. Illegal migrants are foreigners
who enter India without a valid passport or travel
document, or stay beyond the permitted time.
The Bill amended the Act to provide that Hindus,
Sikhs, Buddhists, Jains, Parsis and Christians
from Afghanistan, Bangladesh and Pakistan will
not be treated as illegal migrants. In order to get
this benefit, they must have also been exempted
from the Foreigners Act, 1946 and the Passport
(Entry into India) Act, 1920 by the central
government. The 1920 Act mandates foreigners
to carry passport, while the1946 Act regulates
the entry and departure of foreigners in India.
 Further, the Bill adds that the provisions on The Bill further stated from the date of its
citizenship for illegal migrants will not apply to the enactment, all legal proceedings pending against
tribal areas of Assam, Meghalaya, Mizoram, or such an illegal migrant will be closed.
Tripura, as included in the Sixth Schedule to the
Constitution. These tribal areas include Karbi
Anglong (in Assam), Garo Hills (in Meghalaya),
Chakma District (in Mizoram), and Tripura Tribal
Areas District. It will also not apply to the areas
under the Inner Line” under the Bengal Eastern
Frontier Regulation, 1873. The Inner Line Permit
regulates visit of Indians to Arunachal Pradesh,
Mizoram, and Nagaland.
The Bill further reduces the period of naturalization The Act allows a person to apply for citizenship
for such group of persons from six years to five by naturalizations, if the person meets certain
years. qualifications. One of the qualifications is that
the person must have resided in India or been in
central government service for the last 12 months
and at least 11 years of the preceding 14 years.
The Bill created an exception for Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians from
Afghanistan, Bangladesh and Pakistan, with
regard to this qualification. For these groups of
persons, the 11 years’ requirement will be
reduced to six years.

When the Constitution was adopted in 1950, although it was not initially thought as necessary, the
events of the Partition meant that an entire chapter was devoted to the conferment of citizenship.
But while Articles 6 to 10 delineate various special forms of citizenship necessitated by the
Partition and the ensuing migration of people into India, Article 5 makes it clear that the framers
believed that citizenship ought to be governed broadly by the principle of jus soli, that is
citizenship predicated on residence and birth. To that end, Article 5 states that any person who at
the commencement of the Constitution had domicile in 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. The Citizenship Act, 1955, which was enacted based
on the power explicitly granted to Parliament under Article 11, to “make any provision with respect
to the acquisition and termination of citizenship and all other matters relating to citizenship” only
further fortified jus soli as the governing creed.

This principle, however, has been diluted over time. First, in 1985, through the introduction of
Section 6A of the Citizenship Act 1955, which, with a view to effectuating the Assam Accord,
suspended the conferment of citizenship based on the dates on which people of “Indian origin”
had come into India from what was part of Bangladesh before the amendment. And second, when
the law was amended in 2003 to deprive the rights of people born in India after the amendment
came into force, when even one of the parents of such a person was an illegal migrant.

But until now none of the alterations made to the statute have encroached on the elementary idea
that citizenship will not be premised on a person’s faith. The CAA topples this vision. It does so
by altering the definition of an “illegal migrant”, as contained in the Citizenship Act. Under the
prevailing law, an illegal migrant was defined as any foreigner who had entered into India without
a valid passport or other such valid travel document, or who had entered India with a valid passport
and valid travel documents only for such passport or documents to expire during his or her stay.
Critically, such illegal migrants were deprived of the various means of acquiring legal citizenship
under the law, including citizenship through registration and naturalization. This effectively meant
that a person who had entered India fleeing persecution on some ground or the other, or in search
of economic opportunities, who was categorized as an illegal migrant had no valid way of securing
citizenship, unless the government had regularized such a person’s stay through the issuance of a
long-term visa.

This principle, however, has been diluted over time. First, in 1985, through the introduction of
Section 6A of the Citizenship Act 1955, which, with a view to effectuating the Assam Accord,
suspended the conferment of citizenship based on the dates on which people of “Indian origin”
had come into India from what was part of Bangladesh before the amendment. And second, when
the law was amended in 2003 to deprive the rights of people born in India after the amendment
came into force, when even one of the parents of such a person was an illegal migrant.

But until now none of the alterations made to the statute have encroached on the elementary idea
that citizenship will not be premised on a person’s faith. The CAA topples this vision. It does so
by altering the definition of an “illegal migrant”, as contained in the Citizenship Act. Under the
prevailing law, an illegal migrant was defined as any foreigner who had entered into India without
a valid passport or other such valid travel document, or who had entered India with a valid passport
and valid travel documents only for such passport or documents to expire during his or her stay.
Critically, such illegal migrants were deprived of the various means of acquiring legal citizenship
under the law, including citizenship through registration and naturalization. This effectively meant
that a person who had entered India fleeing persecution on some ground or the other, or in search
of economic opportunities, who was categorized as an illegal migrant had no valid way of securing
citizenship, unless the government had regularized such a person’s stay through the issuance of a
long-term visa.

In Budhan Choudhary v. State of Bihar, the Court in 1955 summed up the test as follows:

“In order, however, to pass the test of permissible classification two conditions must be fulfilled,
namely, (i) that the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group and (ii) that differentia
must have a rational relation to the object sought to be achieved by the statute in question. The
classification may be founded on different bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration. It is also well established by the
decisions of this Court that Article 14 condemns discrimination not only by a substantive law but
also by a law of procedure. The contention now put forward as to the invalidity of the trial of the
appellants has, therefore to be tested in the light of the principles so laid down in the decisions of
this Court.”

Over the years, the Supreme Court has added an additional imperative, that the object of the law
must itself serve a legitimate aim of the State.
As the constitutional scholar HM Seervai observed, in adopting the doctrine, the Supreme Court
was making explicit what was really always implicit in the very idea of equality. That is, that
Article 14 while forbidding class legislation nonetheless, somewhat paradoxically, required the
State to make categorizations that are predicated on achieving substantive equality. Consider the
following example that Seervai cites: if a law prescribes that members of Community A have to
pay tax at 5 percent of their income while members of Community B, who are similarly situated,
have to pay tax at 10 percent of their income, such a law would violate Article 14, because the
classification it makes is unreasonable. Although Community A may be intelligibly
distinguishable from Community B such a classification would bear no rational nexus to the object
of the law, which is to allow the State to earn revenue by taxing people on the basis of their
incomes. Yet, these two prongs of the test do not do enough to guarantee equality. Consider another
example: the State decides to promote the growth of moustaches amongst the country’s male
population. To that end, it grants subsidies to all men who sport moustaches. Such a law may well
meet both prongs to the test: mustached men are intelligibly distinguishable from those without
moustaches; and the classification will also bear a rational nexus with the object of the law, which
is to promote the growth of moustaches amongst men. It is therefore that a proper interpretation of
Article 14 would demand that the State is additionally required to show that the object of any law
made by it is by itself shorn of all arbitrariness, and seeks to serve a legitimate governmental
objective.