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Intelligible differentia: Non-Muslim Persecuted Minorities - Justify!

- Phebe.B

Introduction:

Citizenship is a bundle of rights which define the relationship between

the state and an individual. Enjoyment of fundamental rights and other several
rights depends on the citizenship, for example: Jus Soli (right of soil), Jus
Sanguinis (right of blood). The Citizenship (Amendment) Bill, 2019 which got
the accent of the President on December 12th 2019 became an amending act of
The Citizenship Act, 1955; which opened an outburst all over the country.

Modes of Acquiring Citizenship:

As per The Citizenship Act, 1955 one can get the Indian citizenship in the
following ways:

1. Citizenship by birth (Section:3)

2. Citizenship by descent (Section:4)
3. Citizenship by registration (Section:5)
4. Citizenship by naturalization (Section:6)

Characteristics of CAA1, 2019:

The Amending Act amends the following in the Act No.57 of 19552,
those are:

1. The Non-Muslim Communities who fled to India from Pakistan,

Afghanistan and Bangladesh due to religious persecution on or before 31 st of
December 2014 who are otherwise known as illegal migrants will be given the
citizenship of India on fulfilling certain conditions; thus the Act seeks to amend
the definition of Illegal immigrants.

2. All the complaints against the illegal non-Muslim migrants will

stand abated.

3. Period of Naturalization for Indian Citizenship has been reduced to

an aggregate of not less than 5 years from not less than 11 years in the third

1
Citizenship Amendment Act,2019
2
The Citizenship Act,1955
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schedule of the Act and hence must have lived continuously in India for 6
years.

4. The act does not apply to the areas scheduled under the sixth
schedule of the constitution (i.e) autonomous tribal dominated regions in
Assam, Meghalaya, Tripura and Mizoram and also to the states that have the
inner-line permit regime (i.e) in Arunachal Pradesh, Nagaland, and Mizoram.

5. Under section 6B of the CAA, 2019 the non- Muslim communities

under section 2(1)(b) of the Act, will bore the immunity of naturalization but
not others.

6. The Act under Section:7(d) incorporates the power in the hands of

the centre to cancel the OCI 3 card , if there is any violation of certain
conditions.

7. Thus from the above it is clear that CAA,2019 establishes a three-

tier classification, they are:

i. In terms of selection of minority communities.

ii. In terms of selection of particular countries in the sub-
continent.
iii. In terms of exclusion of the applicability in some parts of the
country.

Refugees:

Under International Law, refugees are persons outside their countries of

origin, who are in need of international protection because of serious threat to
their life, physical integrity or freedom in their country of origin as a result of
persecution, armed conflict, violence or serious public disorder.

Rights of Refugees under the Humanitarian Law and Refugee law:

 The right of Non- Refoulement

 The right to freedom from torture or degrading treatment
 The right to freedom of opinion and expression
 The right to freedom of thought, conscience and religion
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Overseas Citizen of India - OCI
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 The right to life, liberty and security

 Freedom from discrimination
 The right to Asylum

Minorities:

A group numerically inferior to the rest of the population of the state, in a

non-dominant position, whose members-being nationals of State-possess ethnic,
religious or linguistic characteristics differing from those of the rest of the
population and show, if only implicitly, a sense of solidarity, directed towards
preserving their culture, traditions, religion or language4.

Why is it opposed?

 Fear of becoming a linguistic minority within their own state.

 – to promote harmony and the spirit of common brotherhood amongst all

the people of India transcending religious, linguistic and regional or
sectional diversities5- will be eroded from the hearts of the people, since
the Act is deeply divisive.

 This Act promotes nothing but divisive secessionism, thus lets us to

forget the most important right of all, The Human Rights.

Does it really protect all the religiously persecuted minorities?

The answer to this question is no, cause the Act neither protects all
religious minorities nor does it apply to all the neighboring countries. It covers
only the specified communal people from 3 certain countries (i.e) sharia
inclined countries which is discriminatory in both ways as a communal and
hyphenated (region based) citizenship.

For example:

In Pakistan,-Ahmedia, Zikris, Baha’i, Kalasha and Shia – Muslim sects face

discrimination in their own country.

In Burma, Rohingya Muslims and Hindus face persecution.

In Sri Lanka, Hindus and Christian Tamils face persecution.

4
United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1977
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Fundamental duties of The Indian Constitution Article 51 A (e)
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Hindrance in accepting the Act:

 The Act is said to be an inclusive one but by leaving behind a specific

community, how can it be said to be the same.

 If is true that Hindutva or Hinduism accepts all the religion leads to God
(Sarva Sama Bhava), the Muslims and other country refugees won’t be
left out by redefining the Illegal migrants.

 We the People of India must embrace Our Unity in Diversity rather than
being an ignorant lapidary.

 The (National Register of Citizens) NRC for pan-India will benefit the
non-Muslims but for the Muslims it is a pain in the neck because the Act
requires those Muslims without proper documents to prove their
ancestors existence in India.

 It seeks to legally establish Muslims as second class citizen of India by

providing preferential treatment to other groups.

 This Act also enables the issue of marginalization, population anxiety and
seen as a threat to language and survival.

Whether it is consistent with the Indian Constitution?

 The concept of secularism, the basic feature of our constitution, and

promise by the people of India in the preamble to constitute India into a
secular country is breached by this Act.

 Article 14 and 21 of our constitution applies even to non- citizens, some

argue that Article 14 (i.e) Equality before Law is only for those equally
placed, but one has to understand that at first we are all humans and then
comes the religion, being human is sufficient to have equality before law;
if not we wouldn’t have got our father of the Indian Constitution Dr.
Babasaheb Ambedkar.
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 And as for Article 21 is concerned, there exists an contend that right to

live (Protection of life and personal liberty) does not extend to right to
reside in a country, but when we take a deep thought the concept of
naturalization defeats the same.

 Our forbearers dreamt of an independent India where communal

prejudice would be alien to the polity.

 It is the spirit of the constitution that the rights of any person should not
be breached in India on the basis of religious differences.

Way Forward:

 Restrictions wider than necessary tend to suppress rather than regulate,

and authorities should facilitate expression of views, should not suppress
rights.
 To undo the public outcry the leadership must demonstrate the
statesmanship.
 The Act can be further amended to include all sorts of refugee or just can
let them be.
 It is now in the hands of the apex court to decide the same.

References:

 The Citizenship Act,1955

 The Citizenship Amendment Act, 2019
 Constitution of India by Shukla
 Insight into Minoritism by Muzaffar hussasain
 Humanitarian Law
 UN resolution on UNHRC
 Editorials of The Hindu
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Author’s Info

Name: Phebe.B

Institution: Chennai Dr.Ambedkar Government Law College

Phone Number: +91 8760414133