The Citizenship (Amendment) Bill, 2019
Updated: Nov 19
The Citizenship Act of 1955 contains the rules to acquire Indian Citizenship. There are certain criteria to get Indian citizenship like being born in India, living here for a certain time, etc. illegal immigrants are barred from obtaining an Indian Citizenship. A foreigner who either (i)enters the country without valid travel documents, such as a passport and visa, or (ii)enters with valid documents but stays longer than is allowed is considered an illegal immigrant.
The Foreigners Act of 1946 and the Passport (Entry into India) Act of 1920 both allow for the imprisonment or deportation of illegal immigrants. The central government is given the authority to control foreigners' entry, leave, and residency in India. The central government issued two notifications in 2015 and 2016 exempting particular groups of unlawful immigrants from the 1946 and 1920 Acts' prohibitions. These individuals came to India on or before December 31, 2014, and include Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan. This suggests that these groups of undocumented immigrants won't be sent back to their home countries or put in jail for living there illegally
A bill was issued in 2016 to amend the Citizenship Act. The bill intended to amend the rules governing the registration of Overseas Citizens of India (OCI) cardholders to make illegal immigrants who practise these six religions and come from these three nations eligible for citizenship. A committee was formed, and it delivered its report on 7th January 2019. It was approved by the Lok Sabha on January 8th.
The 2019 Bill aims to offer citizenship to illegal immigrants from Afghanistan, Bangladesh, and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians. Certain North Eastern regions are free from this requirement. The Bill also modifies clauses that concern owners of OCI cards. According to the 1955 Act, a foreigner who is of Indian descent or who is married to an Indian national may register as an OCI. This will provide them access to perks like the freedom to visit India and the ability to work and study there. If a person violates any legislation for which they have been made aware by the central government, the Bill changes the Act to provide cancellation of their OCI registration. The 2016 act prohibits illegal immigrants from acquiring. Indian Citizenship. Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan will not be considered illegal migrants, as the Bill amended the Act. They must have been exempted from the central government's Foreigners Act of 1946 and the Passport (Entry into India) Act of 1920 in order to qualify for this benefit. The 2019 Bill adds two additional provisions on citizenship to illegal migrants belonging to these religions from the three countries. On acquiring citizenship, the Bill says: These individuals will be treated as Indian citizens as soon as they enter the country, and any legal action taken against them for illegal migration or citizenship will be dropped. In addition, the Bill adds that the Sixth Schedule to the Constitution's tribal areas of Assam, Meghalaya, Mizoram, and Tripura will not be subject to the citizenship provisions for illegal migrants. Additionally, the Bengal Eastern Frontier Regulation, 1873's "Inner Line" areas will not be affected. Indians are not permitted to travel to Mizoram, Nagaland, or Arunachal Pradesh without a valid Inner Line Permit.
According to the Bill, individuals who meet four requirements will not be considered illegal immigrants for purposes of the Act. They must meet the following requirements: (a) be Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians; (b) be from Afghanistan, Bangladesh, or Pakistan; (c) have entered India on or before December 31, 2014; and (d) not be in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Constitution's Sixth Schedule, or areas covered by the "Inner Line" permit.
Article 14 guarantees equality to all persons, including citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose. The question is whether this provision violates the right to equality under Article 14 of the Constitution as it provides differential treatment to illegal migrants on the basis of (a) their country of origin, (b) religion, (c) date of entry into India, and (d) place of residence in India.
First, only Afghanistan, Pakistan, and Bangladesh are included in the Bill's classification of migrants based on where they came from. According to the Bill's Statement of Objects and Reasons (SoR), India has historically migrated alongside Afghanistan, Pakistan, and Bangladesh, all of which have a state religion that has led to religious persecution of minority groups. The SoR claims that millions of citizens of India's undivided state lived in Pakistan and Bangladesh, but no justification has been provided for including Afghanistan. In addition, it is unclear why migrants from these nations are distinguished from migrants from other neighbouring nations, such as Myanmar (primacy to Buddhism) and Sri Lanka (Buddhist state religion). India shares a border with Myanmar, which has a history of persecution of a religious minority, the Rohingya Muslims. Over the years, there have been reports of both Tamil Eelam and Rohingya Muslims fleeing persecution from their respective countries and seeking refuge in India. Given that the goal of the Bill is to provide citizenship to migrants escaping religious persecution, it is unclear why illegal migrants belonging to religious minorities from these countries have been excluded.
Second, it could be argued that other religious minorities in Pakistan, Afghanistan, and Bangladesh face religious persecution and may have illegally migrated to India in relation to the classification based on that persecution. For instance, there have been reports over the years of Ahmadiyya Muslims being persecuted in Pakistan (who are considered non-Muslims in that country) and atheists being murdered in Bangladesh. It is not clear why the Bill includes illegal migrants from only six specific religious minorities.
Thirdly, the reason why migrants are treated differently depending on when they entered India, i.e. before or after December 31, 2014, is also unclear.
Fourthly, the Bill also excludes illegal migrants from the notified tribal areas of Assam, Meghalaya, Mizoram, and Tripura, which are included in the Sixth Schedule. The Bill also excludes areas that are subject to the Inner Line Permit. The Inner Line controls who can enter Arunachal Pradesh, Mizoram, and Nagaland, including Indian citizens. The same restrictions that apply to other Indian citizens would apply to an illegal migrant living in these areas once he becomes a citizen. So, it's not clear why the Bill doesn't include illegal immigrants who live in these areas.
It could be argued that delegating too much power to the legislature by giving the central government the authority to set a list of laws that can be broken and the OCI registration will be canceled. The Supreme Court has ruled that when an executive authority is given power, the legislature must set a policy, standard, or rule for them to follow. This will limit the authority's powers and not give the authority a free hand to decide how to make rules that are not reasonable. The Bill doesn't say what kinds of laws the central government can notify. As a result, it may be argued that the executive's powers may go beyond the bounds of valid delegation in the absence of standards, criteria, or principles regarding the kinds of laws that the government may notify.