Context

• The Citizenship Amendment Bill (CAB) became law after receiving the President’s assent following a bruising debate in Parliament.
• Since then, Assam has been in the throes of violence with its capital under indefinite curfew, and Army and paramilitary columns rolling across multiple towns.
• The protest has also rocked various colleges and university campuses across the nation along with protests in Delhi. Civil society, students and various political parties have opposed the law on various grounds.
• At least three opposition ruled states Kerala, Punjab and West Bengal have said they will not implement the new citizenship law and legal challenges have been made in the Supreme Court.

What is the Citizenship (Amendment) Act?

• The act is sought to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India.
• In other words, it intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
• Under The Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
• The amendment relaxes the second requirement from 11 years to 6 years as a specific condition for applicants belonging to these six religions, and the aforementioned three countries.

Defining Illegal migrants

• Illegal migrants cannot become Indian citizens in accordance with the present laws.
• Under the Act, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
• Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.
• The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:

1. they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
2. they are from Afghanistan, Bangladesh or Pakistan;
3. they entered India on or before December 31, 2014;
4. they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

How many people could now be given Indian citizenship under the new law?

• As of December 31, 2014, the government had identified 2, 89,394 “stateless persons in India”, according to data presented in Parliament by the Home Ministry in 2016.
• The majority were from Bangladesh (1,03,817) and Sri Lanka (1,02,467), followed by Tibet (58,155), Myanmar (12,434), Pakistan (8,799) and Afghanistan (3,469).
• The figures are for stateless persons of all religions. For those who came after December 31, 2014, the regular route of seeking refuge in India will apply.
• If they are regarded as illegal immigrants, they cannot apply for citizenship through naturalization, irrespective of religion.

States exempted from the Act

• Citizenship, aliens and naturalization are subjects listed in List 1 of the Seventh Schedule and fall exclusively under the domain of Parliament.
• Most states of the Northeast are, however, wholly or partially exempted under special provisions for tribal areas, such as Inner Line Permit (Arunachal Pradesh, Nagaland, Mizoram and now extended to Manipur) and the Sixth Schedule with special provisions in practically all of Meghalaya, and a large chunk of Tripura.

Are the communities mentioned indeed persecuted in these three countries?

• The MHA relied on news reports as evidence of religious persecution against minorities in Pakistan, ranging from forced conversion to the demolition of temples and other religious structures.
• Notable examples were Asia Bibi, a Pakistani Christian convicted of blasphemy who spent eight years on death row before being acquitted by the Pakistan Supreme Court.
• In Bangladesh, cases of killings of atheists by Islamic militants are well-documented.
• Although Home Minister referred to non-Muslim religions as persecuted minorities, the law avoids using the word persecution in its text.

Controversy with the Act

• There are two kinds of protests that are taking place across India right now, against the Act. In the northeast, the protest is against the Act’s implementation in their areas.
• Most of them fear that if implemented, the Act will cause a rush of immigrants that may alter their demographic and linguistic uniqueness.
• In the rest of India, like in Kerala, West Bengal and in Delhi, people are protesting against the exclusion of Muslims, alleging it to be against the ethos of the Constitution.
• The fundamental criticism of the Bill has been that it specifically targets Muslims. Critics argue that it is violative of Article 14 of the Constitution, which guarantees the right to equality.

I. Country of origin

• The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
• The statement of objects and reasons states that India has had historic migration of people with Afghanistan, Pakistan and Bangladesh, and these countries have a state religion, which has resulted in religious persecution of minority groups.

II. Deviation from its own purpose

• Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to religious minorities from these countries have been excluded from the Bill.
• India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
• Sri Lanka has had a history of persecution of a linguistic minority in the country, the Tamil Eelam.

III. Other religious minorities are ignored

• It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
• For example, over the years, there have been reports of persecution of Ahmadiyya Muslims who are considered non-Muslims in Pakistan have significant population in India.

IV. Date of Entry

• It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.
• The logic justifying the date has not been discussed while passing of the said act.

V. Exclusion of Sixth Schedule Areas

• The act excludes illegal migrants residing in areas covered by the Sixth Schedule, that is, notified tribal areas in Assam, Meghalaya, Mizoram and Tripura.
• The act so excludes the Inner Line Permit areas. Inner Line regulates the entry of persons, including Indian citizens, into Arunachal Pradesh, Mizoram and Nagaland.
• Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are applicable to other Indian citizens.
• Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas.

Assam Connection

Why is Assam fuming with protests?

• In Assam, what is primarily driving the protests is not who are excluded from the ambit of the new law, but how many are included.
• The protesters are worried about the prospect of the arrival of more migrants, irrespective of religion, in a state whose demography and politics have been defined by migration.
• The Assam Movement (1979-85) was built around migration from Bangladesh which many Assamese see as a threat to their culture and language, besides putting pressure on land resources and job opportunities.
• The protesters’ argument is that the new law violates the Assam Accord of 1985, which sets March 24, 1971, as the cutoff for Indian citizenship.
• If both CAB and the NRC will be implemented, the non-Muslims excluded under the NRC will be included under CAB.
• The net result will be that only Muslims will be identified as illegal migrants and excluded.
• The Assamese fear that Banglaspeakers will easily outnumber Assamese-speaking people in the state, as it has happened in Tripura where Bengali-Hindu immigrants from East Bengal now dominate political power, pushing the original tribals to the margins.
• The Assamese look at the issue from the linguistic, and not any religious angle. For them, Bengalis are one large linguistic community who are growing in numbers and could, one day, become numerically stronger than them.
• Hence, the Assamese view the CAB (Citizenship Amendment Bill) as legislation that will grant citizenship to Bengali-speaking migrants from Bangladesh. And that is something they do not want.

How much of Assam is exempted?

• In Assam, three Autonomous Districts are exempted but the new law remains applicable to the major area.
• This also raises the question: can there be two citizenship laws applicable to the same state?
• Under Clause 5.8 of the Assam Accord, “Foreigners who came to Assam on or after March 25, 1971, shall continue to be detected; deleted and practical steps shall be taken to expel such foreigners.”

Legality and constitutionality check

• Legal experts and Opposition leaders have argued that it violates the letter and spirit of the Constitution.
• One argument made in Parliament is that the law violates Article 14 that guarantees equal protection of laws.
• According to the legal test prescribed by courts, for a law to satisfy the conditions under Article 14, it has to first create a “reasonable class” of subjects that it seeks to govern under the law.
• Second, the legislation has to show a “rational nexus” between the subject and the object it seeks to achieve. Even if the classification is reasonable, any person who falls in that category has to be treated alike.
• If protecting the persecuted minorities is ostensibly the objective of the law, then the exclusions of some countries and using religion as a yardstick may fall foul of the test.

How is this act referred to here?

• Granting citizenship on the grounds of religion is seen to be against the secular nature of the Constitution which has been recognised as part of the basic structure that cannot be altered by Parliament.
• It is argued that persecuted minorities in three neighbouring countries, Pakistan, Bangladesh and Afghanistan, whose state religion is Islam, is a reasonable classification.
• Another argument is that the law does not account for other categories of migrants who may claim persecution in other countries.

Justification of the Law given by the Central Government

• It is argued that Muslims can never be persecuted in Islamic countries.
• Sri Lanka and Bhutan both Bhutan and Sri Lanka offer constitutional patronage to the state religion, Buddhism.
• Defending the exclusion of Shias and Ahmadiyyas from Pakistan it was argued by the government that a persecuted Shia would rather go to Iran than come to India.
• There are thousands of refugees in India of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis who have entered India after facing religious persecution in countries like Pakistan, Bangladesh and Afghanistan without any valid document.
• These refugees have been facing difficulty in getting Long Term Visa (LTV) or Citizenship.
• For Naturalization they have to stay at least 12 years in India.
• Those minorities who are persecuted due to their religion have no other place to go except India as the three nations are declared Islamic Nations.

It excludes only “non-Indian” Muslims

• On the face of it, the amendment is not to exclude any Indian citizen. However, the NRC in Assam and the latest citizenship law cannot be decoupled.
• The new law gives a fresh chance to the Bengali Hindus left out to acquire citizenship, whereas the same benefit will not be available to a Muslim left out, who will have to fight a legal battle.
• Plugged with NRC, the new amendment becomes an enabling law to potentially disenfranchise an individual of a religion not mentioned in the amendment.
• Politically, the law is expected to impact West Bengal and Northeastern states. Assam and West Bengal head for polls in 2021.

Conclusion

• India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians, including and especially its
• India has to undertake a balancing act here. India’s citizenship provisions are derived from the perception of the country as a secular republic.
• In fact, it is a refutation of the two-nation theory that proposed a Hindu India and a Muslim Pakistan. Granting citizenship based on religious identity violates this principle.
• That being said, we need to balance the civilization duties to protect those who are prosecuted in the neighbourhood.
• Hopefully, the government pays heed to the voices of different communities and takes an action only after a consensus is achieved.

 

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References

https://www.civilsdaily.com/news/explained-nehru-liaquat-agreement-of-1950/

https://www.civilsdaily.com/news/exemption-categories-under-cab/

https://www.livemint.com/news/india/citizenship-amendment-act-2019-all-you-need-to-know-11576401546515.html

https://indianexpress.com/article/opinion/editorials/brute-majority-citizenship-amendment-bill-6162515/

https://www.newindianexpress.com/thesundaystandard/2019/dec/15/citizenship-act-escaping-religious-persecution-the-broken-finally-break-free-2076236.html

https://indianexpress.com/article/explained/explained-how-to-be-a-citizen-of-india-earlier-now-6165960/

http://prsindia.org/billtrack/citizenship-amendment-bill-2019

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Context

The Parliament has passed the Transgender Persons (Protection of Rights) Bill, 2019, with the Rajya Sabha approving it by a voice vote. The Lok Sabha had already passed the bill in December 2018.

Why need such a bill?

• Transgender individuals in India often face stigma and systematic exclusion in education and employment.
• As a result, some feel they have no alternative but to turn to sex work.
• Trans individuals also face disproportionate public violence and police brutalities.

Background:

• In 2013, the government set up an expert committee to study the problems of transgenders and recommend solutions.
• The committee, comprising experts from various fields and members of the community, also looked at past experience as in the State of Tamil Nadu, which had set up a welfare board for transgender persons.
• TN has made recommendations right from allowing a ‘third gender’ in official forms, to setting up of special toilets and customizing health interventions.
• In 2014, a private member Bill, The Rights of Transgendered Persons, was introduced in the Rajya Sabha by Tiruchi Siva, a Member of Parliament from Tamil Nadu.
• It looked at a range of entitlements of such persons, providing specifically for them in health, education sectors, skill development and employment opportunities, and protection from abuse and torture.
• It was passed in the Rajya Sabha.
• In 2016, the Government introduced its own Bill in the Lok Sabha which made a number of recommendations including defining the term persons with intersex variations, granting reservations for socially and educationally backward classes, and recognition of civil rights including marriage, partnership, divorce and adoption. However, with the dissolution of the 16th Lok Sabha (2014-19), that Bill lapsed.

Judicial subordination

• Indian courts have long held that trans people deserve the government’s recognition on their own terms, without mandatory intervention or discrimination.
• In 2014, the Indian Supreme Court in NALSA v. India ruled that transgender people should be recognized as a third gender and enjoy all fundamental rights, while also being entitled to specific benefits in education and employment.
• Justice K.S. Radhakrishnan, writing for the bench, ordered that “Transgender persons’ right to decide their self-identified gender” should be recognized by state and federal authorities.
• The court made clear that any insistence for [sex reassignment surgery] for declaring one’s gender is immoral and illegal.

Transgender in India

Count

• Indian census has never recognized the third gender, i.e., transgender while collecting census data for years.
• According to the 2011 Census, the number of persons who do not identify as ‘male’ or ‘female’ but as ‘other’ stands at 4,87,803 (0.04% of the total population)
• The 2011 census also reported 55,000 children as transgenders identified by their parents.

Issues

• Sexual health issues
  • Transgender communities face several sexual health issues including HIV.
  • Both personal- and contextual- level factors influence sexual health condition and access to and use of sexual health services.
• Mental health issues
  • Some of the mental health issues reported in different community forums include depression and suicidal tendencies, possibly secondary to societal stigma, lack of social support and violence-related stress.
  • Most transgender people, especially youth, face great challenges in coming to terms with one’s own gender identity which are opposite to that of the gender identity imposed on them on the basis of their biological sex.
  • They face several other related issues such as: shame, fear, and internalized transphobia; adjusting, adapting, or not adapting to social pressure to conform; fear of loss of relationships; and self-imposed limitations on expression or aspirations.
• Violence

Multiple studies have shown that transgender people across the age spectrum face alarmingly high rates of physical and verbal violence, including child abuse, sexual violence, intimate partner violence, workplace violence and hate crimes.

• Social Exclusion

Social Exclusion Framework is increasingly used in highlighting the issues and problems faced by disadvantaged and disenfranchised groups.

• Family – Most families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling from behaving or dressing-up like a girl or woman.
• Heath care Setting – Often, healthcare providers rarely had the opportunity to understand the sexual diversities and they do not have adequate knowledge about the health issues of sexual minorities.
• Lack of livelihood options – Most employers deny employment for even qualified and skilled transgender people. Lack of livelihood options is a key reason for a significant proportion of transgender people to choose or continue to be in sex work.
• Residence – The community is grossly discriminated by Indian Society when it comes to renting or selling the house to a transgender.
• Insurance – Health insurance companies often systematically exclude transition-related care and in many cases, these exclusions are used to deny coverage for a wide range of care for transgender people that may or may not have any connection to gender transition.

Various Provisions of The Transgender Persons (Protection of Rights) Bill, 2019 includes:

Defining Transperson

• The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.
• It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra (eunuch).

Prohibition against discrimination

• It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public.
• Every transgender person shall have a right to reside and be included in his household.
• No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.

HRD measures

• A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
• Educational institutions funded or recognised by the relevant government shall provide inclusive facilities for transgender persons, without discrimination.
• The government must provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.

Grievances redressal

• The National Council for Transgender persons (NCT) chaired by Union Minister for Social Justice, will advise the central government as well as monitor the impact of policies with respect to transgender persons.
• It will also redress the grievances of transgender persons.

Legal Protection

The Bill imposes penalties for the offences against transgender persons like bonded labour, denial of use of public places, removal from household & village and physical, sexual, verbal, emotional or economic abuse.

Positive Impact of the Bill:

• The Bill will benefit a large number of transgender persons, mitigate the stigma, discrimination and abuse against this marginalized section and bring them into the mainstream of society.
• This will lead to inclusiveness and will make the transgender persons productive members of society.

What were the objections to the Bill?

Binary concept of gender

• Activists had problems right from the beginning, starting with the name.
• ‘Transgender’ was restrictive, they argued, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female.
• Rejecting ‘Transgender’ as the nomenclature, they suggested instead that the title should be a comprehensive “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”, and in definition, sought to introduce the distinction between transgender and intersex persons upfront.
• Members of the community perceive transgender as different from intersex and were insistent that the distinction be made in the Bill.

No Self-determination

• While the Act is progressive in that it allows self-perception of identity, it mandates a certificate from a district magistrate declaring the holder to be transgender.
• This goes against the principle of self-determination itself, activists argue, also pointing out that there is no room for redress in case an appeal for such a certificate is rejected.

Others

• One long-pending demand has been to declare forced, unnecessary and non-consensual sex reassignment surgery illegal, and to enforce punitive action for violations.
• Transgender and intersex persons might require a range of unique health care needs, and that should have been incorporated into the Act, activists say.
• While the Act envisages the setting up of a National Council to provide the institutional framework for its implementation, suggestions on the composition of such a council, or the demand to set up a working group for a Council for Intersex Persons were also ignored.

Way Forward: 

• The mention of intersex persons in the Indian bill is an important inclusion but the bill should be renamed the Rights of Transgender and Intersex Persons Bill and include explicit protections for intersex people in line with India’s international human rights obligations.
• The bill should be revised to emphasize training teachers to help them adopt inclusive teaching methods to ensure that children are not harassed or discriminated against by staff or other children.
• Certain provisions of Private member bill introduced in 2014 by Tiruchi Siva can also be incorporated such as reserving 2% of seats in education institutions funded by the government, formation of special employment exchanges for transgender people n government jobs, etc.
• The bill should be provisioned in such a manner that it is able to integrate transgender persons seamlessly into the fabric of everyday public life be it public spaces, at workplaces, and in normative domestic spaces.
• Policies and regulation alone won’t help there is a need to increase awareness and inculcate a sense of respect and acceptance for the transgender community.
• Their grievance of being not included in policies formulation or decision making needs to be allayed and chances for their public participation should increase.
• The government should implement stigma and discrimination reduction measures through a variety of ways like mass media awareness for the general public to focused training and sensitization for police and health care providers.
• India should take lessons from Thailand. It is one of those model countries wherein all the required facilities are being made available to the Transgender Community.
• Parents of the Transgender need to be counselled appropriately in order to treat Kinnar children at par with other normal children
• There should be a proper census of the community. The community should be involved in this exercise. For the time being, the United Nations Development Programme(UNDP has more authentic data on Transgender in India. It could be used for planning welfare schemes.
• Ministry of Social Justice and Empowerment should take up research studies to generate more evidence to design the programs and interventions for the community.
• The ministry should also compile the existing experiences /interventions taken by many states like Tamil Nadu, Maharashtra, Sikkim, and Delhi etc.

The Bill must recognise that gender identity must go beyond biological; gender identity is an individual’s deep and personal experience. It need not correspond to the sex assigned at birth. It includes the personal sense of the body and other expressions such as one’s own personal inducing proceeds.

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References

https://www.civilsdaily.com/news/parliament-passes-transgender-persons-protection-of-rights-bill-2019/

https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.ece

https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating

https://indianexpress.com/article/explained/what-the-transgenders-rights-bill-passed-by-lok-sabha-says-5896444/

https://indianexpress.com/article/opinion/columns/nartaki-nataraj-tiruchi-siva-my-gender-is-my-right-transgender-community-6144704/