[Burning Issues] Citizenship Amendment Bill (CAB) 2016

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Introduction

Citizenship is at the heart of modern nation-state. Citizenship entails rightful claims on the state/govt and that is why it is often fiercely contested.

Who is a citizen in India’s constitutional scheme? What are various principles/kinds of citizenship?

  1. Citizenship defines the relationship of an individual with a political community, and signifies the individual’s full and equal membership of that community. A citizen is defined in opposition to an ‘alien’; the exclusion of aliens is central to the concept of modern citizenship.
  2. The Constitution gives some fundamental rights to non-citizens — the right to equality before the law (Article 14); protection of life and personal liberty (Article 21); freedom to manage religious affairs (Article 25), for example.
  3. However, some other fundamental rights, such as prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15); equality of opportunity in matters of public employment (Article 16); and the six basic freedoms of speech and expression, peaceful assembly, forming associations or unions, movement, residence, and profession (subject to reasonable restrictions, Article 19), are available only to citizens.
  4. Also, only a citizen has the right to vote in elections to Lok Sabha and state Assemblies (Article 326), become a member of these Houses (Articles 84, 191d), and assume certain high offices such as those of President, Vice-President, Governor, and a judge of the higher judiciary.
  5. Under the principle of jus soli (right of the soil), citizenship belongs to everyone born in the territory of a state. Jus sanguinis (right of blood), on the other hand, gives prominence to ties of blood in the grant of citizenship. The “momentum” concept of citizenship underlines individualism, universality and equality, and obliterates identities of ethnicity, religion and caste. “Differentiated citizenship”, however, recognises and accommodates group identities typical of multicultural societies that may at times require differential treatment.

How did Partition and the large-scale migration from territories that became part of Pakistan impact citizenship?

  1. Articles 5-11 of the Constitution describe the various categories of persons who are entitled to citizenship. These were enforced on November 26, 1949, ahead of the commencement of the Constitution on January 26, 1950.
  2. Article 11 empowers Parliament to regulate citizenship by law; the Citizenship Act was, therefore, passed in 1955. It has since been amended in 1986, 2003, 2005, and 2015.
  3. Article 5 provided for citizenship on the commencement of the Constitution: all those domiciled and born in India, either of whose parents was born in India, or anyone who had been ordinarily resident in India for at least five years preceding the commencement of the Constitution.
  4. Under Article 6, anyone who migrated to India before July 19, 1948, from territory that had become part Pakistan, automatically became a citizen if either of their parents or grandparents was born in India.
  5. But those who entered India after this date needed to register themselves. Those who had migrated to Pakistan after March 1, 1947, but had subsequently returned on resettlement permits, too, were included within the citizenship net (Article7).
  6. Under Article 8, a person of Indian origin residing outside India who, or any of whose parents or grandparents, was born in India can register as an Indian citizen with the relevant Indian diplomatic mission.

How did the situation in Assam impact the nature of citizenship?

  1. The Citizenship (Amendment) Bill, 2016, seeks to amend the 1955 Act to permit members of six communities — Hindu, Sikh, Buddhist, Jain, Parsi and Christian — from Pakistan, Bangladesh and Afghanistan eligible for citizenship if they had entered the country before December 14, 2014.
  2. Under the original Act, an applicant seeking citizenship by naturalization must have resided in India during the last 12 months, and for 11 of the previous 14 years.
  3. The proposed Bill relaxes the 11-year requirement to six years for applicants belonging to these six religious communities and three countries.

The protests in Assam

  1. Many organisations in Assam are up in arms against the proposed Bill, which they fear may trigger demographic change in Assam as illegal Bangladeshi Hindu migrants are granted citizenship.
  2. Several BJP allies are against the amendment; in Meghalaya, where the BJP is part of the government, the state cabinet took a decision to oppose the Bill.
  3. Enthusiasm for the Bill is largely restricted to the Bangla-speaking people in the Barak Valley.

The Citizenship Amendment Bill 2016 raises several issues:

First, It makes illegal migrants eligible for citizenship based on their religion. It clearly violates Article 14 and 15 (1) of the Constitution.

  • Proponents of the bill argue that even though it does not explicitly state it, the bill grants citizenship based on a reasonable classification. On this view, these minorities are likely to be persecuted in the three states in question; it is unlikely that any other state would grant them citizenship; and therefore, a special dispensation for them is justifiable.
  • The claim that India has special obligations only to persecuted minorities of particular religions is debatable. But even if we grant for a moment that the historical circumstances of these persecuted minorities are different, the form of the bill matters.
  • Instead of simply saying that members belonging to particular religions will be eligible for differential treatment, the bill should have laid down some general secular criteria (persecution history, history of migration etc) which could, in principle, at least, be applied to all groups.
  • But the direct exclusion of Muslims from being eligible for this pathway under any circumstances makes the constitutional form and citizenship communal.

Second, the bill clearly violates the Assam Accord.

  • Whatever one may think of it, the issue of the credibility of an accord signed by the Union of India is not entirely a trivial one. And it may have ramifications for future negotiations.

Third, the bill has potentially interesting implications for asymmetric federalism.

  • One of the proposals under consideration is to exempt Assam from the purview of the bill while making it applicable to the rest of India.
  • There is not much opposition to this bill in other states.
  • The political consequences of this bill are not nearly as severe as in Assam.

Conclusion

  1. In its present from the CAB 2016 suffers from various constitutional improprieties and is highly unlikely to stand judicial scrutiny.
  2. In an incredibly diverse country like India, it is paramount that constitutionalism reigns supreme.
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