A lot has been said and written about the Citizenship (Amendment) Act, 2019 (hereafter referred to as CAA). Public opinion has perhaps never been as divided as seen in this case. The differences have been exacerbated by the fact that we have focused more on individual statements rather than looking at the details of the Act. Yes, the CAA consists only of three pages. But, a close examination of section 2 and section 6 of the law throws up some interesting conclusions.
What Is Section 2?
Section 2 is reproduced below:
In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:— “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”.
The Citizenship Act, 1955 provides a list of methods via which a person can acquire the citizenship of India such as by birth, descent, registration and naturalisation. It also lays down the definition of ‘illegal migrant’.
(b) “illegal migrant” means a foreigner who has entered into India― (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;
A bare reading of section 2 of the CAA makes it clear that it wants to safeguard people belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian community hailing from Afghanistan, Bangladesh and Pakistan from being treated as illegal migrants, to pave way for them to become eligible to get Indian citizenship.
The aforesaid proviso has now been inserted into the definition of an illegal migrant. However, it adds few important caveats. First, it is not a blanket concession for all members of the 6 communities. Apart from the December 31, 2014 cut-off date, it mentions “and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder”.
The Amendments To The Passport (Entry into India) Rules, 1950
The clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 basically empowers the Centre to frame rules providing for the exemption, either absolutely or on any condition, of any person or class of persons from possessing a passport while entering India.
The Narendra Modi government basically invoked this clause on September 7, 2015 and July 18, 2016 and amended the Passport (Entry into India) Rules, 1950 which retrospectively legalised the entry of “persons belonging to minority communities in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014”. Interestingly, Afghanistan was subsequently incorporated in the list of the countries on July 18, 2016.
Significance Of Section 6
Section 6 is reproduced below:
In the Third Schedule to the principal Act, in clause (d), the following proviso shall be inserted, namely:— ‘Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.’
The Third Schedule of the Citizenship Act, 1955 contains the qualifications for naturalisation. By virtue of the addition of the above proviso, a blanket concession is provided to people belonging to only 6 religious communities from three countries reducing their aggregate period of residence by 6 years.
Conclusion
While it must be acknowledged that the Centre does have a case when it cites ‘religious persecution’ as a reason for inserting the proviso in section 2, the consequences of the section hinge on the interpretation of what constitutes ‘fear of religious persecution’. Because, fear is a subjective concept, that risks making it literally impossible to distinguish between victims of religious persecution and merely being a person belonging to a minority community.
On the other hand, section 6 is even more controversial for, it does not give any rationale for giving a concession to all the persons belonging to the 6 religious communities irrespective of whether they have faced persecution or not.
This is no explanation for treating the people from the majority community in Afghanistan, Bangladesh and Pakistan differently and is prima facie discriminatory against people cutting across religion from other nations as they will have to fulfil the condition of minimum 11 years of residency.
In a way, the very rationale of section 2 is defeated by section 6 as a combined reading of the two conveys the impression that only certain religious communities are more deserving of citizenship than the others. This might run afoul of the fact that India does not have a state religion.
In my humble opinion, a lot will rest on whether section 6 of the Act, the Passport (Entry into India) Amendment Rules, 2015 and the Passport (Entry into India) Amendment Rules, 2016 have been cited in the petitions challenging the CAA. Because, these three aspects might hold the key to ascertain the constitutionality of this law.