January 16, 2020 In Uncategorized



The Constitution of India under Part II (Article 5-11) provides provisions regarding citizenship. Article 11 gives the Parliament the power to make provisions regarding the acquisition and termination of citizenship and other related matters. However, the Parliament must not derogate anything contained in the Part II while making such provisions. The Citizenship Act of 1955 (further referred to as ‘the Act’) was the result of such power of the Parliament as provided by the Constitution. Thereafter, the Act has been amended in 1986, 1992, 2003, 2005 and 2015.

Post-independence, India has witnessed an influx of religious minorities from neighboring countries whose fundamental rights have been suppressed. Recently, a new Citizenship Amendment Bill, 2019 was introduced and passed by the Lok Sabha on 9th December 2019, passed by Rajya Sabha on 11th December 2019 and the President gave his assent on 12th December 2019 (further referred to as ‘the Amendment Act’).

Following are the amendments which have been brought into the Act by the 2019 Amendment Act:

1) Definition of “illegal migrant”

Section 2(1) (b) of the Act provides that a foreigner who has entered into India­­-

  • without a valid passport or other prescribed travel documents, or
  • with a valid passport or other travel documents whose permitted time limit has expired

will be considered as “illegal migrant”.

The 2019 Amendment made certain exclusions to the definition of illegal migrant which are:

Every person belonging to any of the religious communities of Hindu, Sikh, Buddhist, Jain, Parsi or Christian from Afghanistan, Bangladesh or Pakistan who has entered into India on or before 31st December 2014.

Further, the insertion of Section 6B allows citizenship to those excluded from the definition of illegal migrant by granting a certificate of registration or naturalization and any proceeding pending against any such person concerning illegal migration or citizenship shall stand abated.

Also, Section 6B(4) provides that tribal areas of Assam, Meghalaya, Mizoram or Tripura which are specified in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” as notified under the Bengal Eastern Frontier Regulation, 1873 are exempted from applying the provisions regarding citizenship provided under the 2019 Amendment.

Additionally, the amendment, by the addition of Clause (eei) in Section 18(2), provides that the Central Government may make rules regarding conditions, restrictions and manner for granting certificate under Section 6B(1) for fulfilling the purpose of this amendment.

2) Cancellation of Registration as Overseas Citizen of India

Among various other grounds for the cancellation of registration as an OCI provided under Section 7D, another ground has been added through Section 7D(da). It says that the registration of an OCI cardholder may be cancelled if he violates any of the provisions of the Act or any other law in force- but only after being given a reasonable opportunity of being heard.

Attention must be brought to this amendment as it provides wide discretion to the Central Government without prescribing for any further rule in this regard.

3) Amendment to the Third Schedule

The Third Schedule of the Act specifies qualifications for naturalization of a person. Amendment to Clause (d) by the insertion of proviso states that persons belonging to the above-mentioned six communities from Afghanistan, Bangladesh or Pakistan are only required to-

  • have resided in India, or
  • to have been in the service of Government in India

For the aggregate period of at least five years during the fourteen years immediately preceding twelve months preceding the date of application made for the grant of certificate of naturalization.

This has resulted into the effect that any person belonging to any of these six communities from any of these three countries who has entered into, and has been residing in India on or before 31st December 2014 shall be eligible to be a citizen of India. Before this amendment, the said aggregate period was eleven years for every such person otherwise eligible for naturalization.

Since the Bill has been introduced in the Lok Sabha, people including political parties from opposition and students’ bodies all over the country have started protesting and showing their outrage towards the Bill. However, the reasons for these protests are two-fold:

Firstly, protests are coming up from Assam and other Northeast states as they fear that it would result in an influx of religious minorities from Bangladesh into their states which will destroy the ethnic culture and interests of the indigenous communities in the Northeast.

Secondly, people from all over the nation are coming up for protest mainly because of non-inclusion of the Muslim community into the special provision regarding citizenship which has been granted to other six religious minorities from the three neighboring Islamic nations. The protesters consider it to be violative of Article 14 of the Constitution and its basic structure which provides for India to be a secular State.

However, these protests have turned up into violence on the part of both the protesters as well as the Policing Department who were supposed to control the situation. The protests have taken up this form because majority of people- including the protesters from various students’ bodies and universities across the nation- do not know exactly what amendments have been brought into the Act and what is more saddening is the fact that they do not even care to get into the root of their causes. They are simply listening and responding to the provocations by their religious or political heads and are just being the sheep in the herd. Such action is impractical and is leading us to nowhere. The situation has even more aggravated by the spread of rumors and fake news over various social media platforms also by the news media and political leaders from various political parties as such things are blatantly being followed and shared by the general public. This has made the situation worse and led to the increased gravity of concern needed for what the nation is currently facing.

Therefore, certain clarifications are the need of the hour in this regard. Firstly, the amendment does not change or remove other ways available in the Act for the grant of citizenship to the people belonging to any faith or religion. It has only provided for special provision for citizenship to religious minorities who have fled their country namely Afghanistan, Bangladesh and Pakistan from religious persecution or from the fear of such religious persecution. Secondly, the amendment only deals with providing citizenship to religious minorities; the procedure for persecuted Muslims to seek asylum in India is still the same and the Amendment Act does not prohibit in any way the grant of asylum to Muslims.

Among other debates over the Amendment Act, one was that not including religiously persecuted Sri Lankan Tamil Hindus into the Amendment Act is discriminatory to which Mr. Harish Salve has very well put forward as to why it is not the case, saying- “a law which addresses one evil need not address all possible evils or similar evils- that’s a well-settled law under Article 14 and that is never a ground to challenge a law”.

Amidst these protests, the Supreme Court finally agreed to hear the petitions challenging the Citizenship (Amendment) Act, 2019 on December 18, where it refused to stay its implementation. The Court, then, issued a formal Notice to the Government where it has admitted 59 Petitions filed by people challenging the constitutional validity of the Amendment Act and the Apex Court has further agreed to hear these Petitions on 22nd January 2020.

Payal Goyal

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