From UPSC perspective, the following things are important :
Prelims level : Nothing much
Mains level : CAB and its analysis
The Citizenship (Amendment) Bill (CAB) promises to give the protection of citizenship to non-Muslims who fled to India to escape religious persecution in Pakistan, Bangladesh, and Afghanistan.
Reasonable – unreasonable
- Religious persecution is a reasonable ground for protection.
- Not all communities – However, CAB does not include all communities that suffered religious persecution.
- Muslims – It explicitly excludes Muslims who suffered persecution in the specified countries and other non-Muslim majority countries like Myanmar.
- This is a majoritarian notion of religion-based citizenship.
- It is not shared by the majority of people in this country.
- Such a view is alien to the constitutional consensus which emerged in 1950.
- Inclusive citizenship – the CAB changes completely the idea of equal and inclusive citizenship promised in the Constitution.
Arguments in support
- It is non-discriminatory and its objectives are justifiable.
- Moral imperative – The need of correcting a perceived past wrong — the Partition.
Changes in citizenship law
- With NRC – The CAB must be seen in tandem with the National Register of Citizens (NRC) and other changes in the citizenship law.
- NRC – NRC protects the country against illegal migrants and the CAB protects refugees.
- Against the intent – This is incommensurate with the election speeches made by BJP leaders. Eg., Amit Shah had promised an NRC in West Bengal, but only after the passage of the CAB to ensure that no Hindu, Buddhist, Sikh, Jain and Christian refugee is denied citizenship for being an illegal immigrant.
- The Home Minister declared that a nationwide NRC would follow soon.
CAB – NRC
- The CAB and the NRC have become conjoined in their articulation of citizenship.
- The two represent the tendency towards jus sanguinis in the citizenship law in India, which commenced in 1986, became definitive in 2003, and has reached its culmination in the contemporary moment.
- ‘Illegal migrants’ – In 2003, the insertion of the category ‘illegal migrants’ in the provision of citizenship by birth became the hinge from which the NRC and the CAB emerged.
- The Citizenship (Registration of Citizens and issue of National Identity Cards) Rules of 2003 – made the registration of all citizens of India, the issue of national identity cards, the maintenance of a national population register, and the establishment of an NRC by the Central government compulsory.
- Registrar General of Citizen Registration is to collect particulars of individuals and families, including their citizenship status, through a ‘house-to-house enumeration’.
- Assam exception –Assam has followed a different procedure of ‘inviting applications’ with particulars of each family and individual and their citizenship status based on the NRC 1951 and electoral rolls up to the midnight of March 24, 1971.
- The purpose of the NRC is to sift out ‘foreigners’ and ‘illegal migrants’, who were referred to at different points as ‘infiltrators’ and ‘aggressors’, and a threat to the territory and people of India.
Exempting minority groups
- Minorities – The second strand emerging from the 2003 amendment has taken the form of the CAB, which exempts ‘minority communities’, Hindus, Sikhs, Buddhists, Jains, and Christians, from three countries — Bangladesh, Pakistan and Afghanistan — from the category of ‘illegal migrants’.
- Inline with past exemptions – CAB brings the citizenship law in line with exemptions already made in the Passport Act 1920 and Foreigners Act 1946 through executive orders in September 2015 and July 2016. It sets a cut-off date of December 31, 2014 as the date of eligibility of illegal migrants for exemption.
- Change in date – A PIL filed by the Assam Sanmilita Mahasangha pending before the Supreme Court has contested the deviation in the cut-off date set for Assam by the Citizenship Amendment Act 1986, March 24, 1971, from the date specified in Article 6 of the Constitution, i.e., July 19, 1948, which applies to the rest of the country.
- Forward cutoff – The CAB is applicable to entire India, and takes the cut-off date forward by several years.
Joint Parliamentary Committee (JPC)
- ‘Persecuted minorities’ – constitutional experts advised JPC to use a broader category, ‘persecuted minorities’, to protect the Bill from the charge of violating the right to equality in Article 14.
- Religious basis – The CAB uses the category ‘minority communities’ and identifies them on the ground of religion. The notifications of 2015 and 2016, which changed the Passport and Foreigners Acts, had mentioned the term ‘religious persecution’.
- Religious persecution – if it is the basis for making a distinction among persons, as per JPC, it could not be discriminatory, because the distinction was both intelligible and reasonable. It satisfies the standards laid down in the Supreme Court judgment in State of West Bengal vs. Anwar Ali Sarkarhabib (1952) to affirm adherence to Article 14.
Test of reasonableness
- Supreme court laid down substantive conditions in the same verdict.
- Applying criteria – the criteria of intelligibility of the differentia and the reasonableness of classification, must satisfy both grounds of protection guaranteed by Article 14, i.e., protection against discrimination and protection against the arbitrary exercise of state power.
- Further test of reasonableness – In 2009, the Delhi High Court judgement in Naz Foundation vs. Government of NCT of Delhi referred to “a catena of decisions” to lay down a further test of reasonableness. It requires that the objective for such classification in any law must also be subjected to judicial scrutiny.
- Restraint – The restraint on state arbitrariness was to come from constitutional morality. B.R. Ambdkar declared that it is the responsibility of the state to protect the constitutional morality.
- Government wishes to change the citizenship law to address the problem of refugees.
- The JPC refers to standard operating procedures for addressing the concerns of refugees from neighbouring countries.
- SoPs – for refugees from the erstwhile West Pakistan, the standard operating procedure was the grant of long-term visas leading to citizenship.
- This law will put them through an arduous process of proving religious persecution.
- Immediately after Partition, ‘displaced persons’ constituted an administrative category, and citizenship files of 1950s show that process of preparation of electoral rolls was expedited.