The Citizenship (Amendment) Bill 2019 (CAB) is a bill amending the Citizenship Act of 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who entered India on or before 31 December 2014, eligible for Indian citizenship. It also seeks to relax the requirement of residence in India for citizenship by naturalisation from 11 years to 5 years for these migrants. Immediate beneficiaries of the Bill, according to IB records, will be just over 30,000 people.
The Union Cabinet cleared the Bill on 4 December 2019. It was passed by the Lok Sabha on 10 December. It is scheduled to be presented to the Rajya Sabha on 11 December.
The Bharatiya Janata Party had promised to grant citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan but not Muslims. In the party’s election manifesto in 2014, the BJP had promised to welcome Hindu refugees and give shelter to them. The Citizenship (Amendment) Bill, 2016 was introduced and passed in Lok Sabha but there was widespread political opposition and protests in the northeast India. Their chief concern was that the demography of Northeast India will change with the influx of migrants from Bangladesh. Following it, 2019 Bill was brought in with exclusion of northeast Indian states from the provisions of the Bill.
In the 2019 election campaign, the BJP’s manifesto reiterated its commitment to bring in the Bill. The National Register of Citizens (NRC) was updated in Assam state in 2019, leaving out 1.9 million residents, a majority of whom were Hindus, without citizenship. This matter brought urgency to the bring in the Bill.
The Bill was introduced in Lok Sabha on July 19, 2016 as the Citizenship (Amendment) Bill, 2016. It was referred to the Joint Parliamentary Committee on August 12, 2016. The Committee submitted its report on January 7, 2019.
In January 2016, the Citizenship (Amendment) Bill was introduced to amend the Citizenship Act, 1955. It was introduced in Lok Sabha on 19 July 2016 and was referred to a Joint Parliamentary Committee on 12 August 2016, which submitted its report on 7 January 2019. It was passed by Lok Sabha on 8 January 2019. It lapsed with the dissolution of the 16th Lok Sabha.
Subsequently, the Union Cabinet cleared the Citizenship (Amendment) Bill, 2019 on 4 December 2019 for introduction in the parliament. The Bill was introduced in 17th Lok Sabha by the Minister of Home Affairs Amit Shah on 9 December 2019 and was passed on 10 December 2019 at 12:11 a.m. with 311 MPs voting in favour and 80 against the Bill. It is scheduled to be presented to the Rajya Sabha on 11 December.
The Bill amends the Citizenship Act of 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who entered India on or before 31 December 2014, eligible for Indian citizenship. Under the Act, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 11-year requirement to five years for persons belonging to the same six religions and three countries. The bill exempts the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth Schedule to the Constitution from its applicability. These tribal areas include Karbi Anglong in Assam, Garo Hills in Meghalaya, Chakma district in Mizoram, and Tribal Areas district in Tripura. It also exempted the areas regulated through the Inner Line Permit which includes Arunachal Pradesh, Mizoram and Nagaland. The inclusion of Manipur in Inner Line Permit is also announced on 10 December 2019.
The Bill includes new provisions for cancellation the registration of Overseas Citizenship of India (OCI) such as registration through fraud, in case of OCI holder sentenced to imprisonment for two or more years within five years of registration and in necessity in the interest of sovereignty and security of India. It also includes a provision on violation of any law notified by the central government. It also adds the opportunity for the OCI holder to be heard before the cancellation.
The US Commission on International Religious Freedom (USCIRF) called for sanctions against Amit Shah and “other principal leadership” over passage of the Bill on 9 December 2019. The Ministry of External Affairs (India) issued a statement following this:
The statement made by the USCIRF on the Citizenship Amendment Bill is neither accurate nor warranted. [...] Neither the CAB or National Register of Citizens (NRC) process seeks to strip citizenship from any Indian citizen of any faith. Suggestions to that affect are motivated and unjustified. [...] — Raveesh Kumar, Official Spokesperson, Ministry of External Affairs, GOI
Imran Khan, the Prime Minister of Pakistan, criticized the proposed citizenship law for violating “bilateral agreements”. In January 2019, Research and Analysis Wing (RAW) had said to a Joint Committee of Parliament on a earlier version of the CAB that the “CAB could be misused by foreign agents to infiltrate India” (from agencies like Pakistan’s ISI) and that it “could become ‘legal framework’ which they could use to infiltrate India.”
The key issue to consider is whether the Bill violates Article 14 of the Constitution of India because the Bill provides differential treatment to illegal migrants on the basis of their country of origin, religion, date of entry into India, and place of residence in India (regarding exempted northeast India regions). 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. A classification of groups of people in a proposed law in consideration satisfies test for “reasonable classification” and consequently exempted from Article 14 when:
The classification is based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group, and, The differential has a rational relation with the objective of the act.
The Statement of Objects and Reasons in the CAB states that:
"Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents."
The Bill therefore intends to protect communities facing persecution on the grounds of religion and/or facing restrictions on religious freedom. It uses the criteria of state religion to identify the three countries of Afghanistan, Bangladesh and Pakistan. It is not clear why Bhutan, which has Vajrayana Buddhism as the state religion, is excluded, because Christians in Bhutan can only pray privately inside their homes. In Myanmar, which does not have a state religion, the government allegedly discriminates against Muslim and Christian minorities in practicing, professing and propagating their religion. The constitution of Sri Lanka provides the right to freedom of religion but the U.S. Report on International Religious Freedom 2018 for Sri Lanka mentions,
"According to representatives of religious minority communities and nongovernmental organizations (NGOs), government officials at the local level continued to engage in systematic discrimination against religious minorities, especially Muslims and converts to “free” (nondenominational and evangelical) Christian groups. Local government officials and police reportedly responded minimally or not at all to numerous incidents of religiously motivated violence against Muslim and Christian minorities. There were some reports of government officials being complicit in physical attacks on and harassment of religious minorities and their places of worship."
Therefore, even if Bhutan is added, it can be argued that the sole criteria of state religion is not fully consistent with the objectives of the Bill, unless one justifies the inclusion of Afghanistan and exclusion of Myanmar and Sri Lanka on the basis of another criteria that removes inconsistencies. The Bill also mentions the history of “undivided India” in its motivation. There can be at least two definitions of this term. On the one hand, it could mean British India which did not include Afghanistan, Myanmar or Sri Lanka at the time of Partition in 1947 so inclusion of Afghanistan but exclusion of Sri Lanka and Myanmar would be arbitrary while still being inconsistent with the objectives. One the other hand, Rashtriya Swayamsevak Sangh’s idea of “Akhand Bharat” includes the three countries mentioned in the Bill, and also Sri Lanka and Myanmar.
This would justify the inclusion of Afghanistan but not the exclusion of Sri Lanka and Myanmar, again failing to remove inconsistencies with the objectives. Therefore, criteria for identification of countries is arguably questionable.
Consequently, the exclusion of communities such as Rohingyas in Myanmar who are arguably persecuted on the grounds of race or ethnicity not religion but face restrictions on religious freedom nonetheless, is questionable. Similar question arises for Christian and Muslim minorities in Sri Lanka. Finally, the exclusion of Ahmadiyyas in Pakistan and the atheists in Bangladesh is also questionable. A related issue but not in the purview of the Bill is the migration of Sri Lankan Tamils in India who are majority Hindus, a minority religion in Sri Lanka but have suffered persecution on the grounds of ethnicity.
According to PRS Legislative Research, the ability to notify any law and lack of clarity of these laws whose violation may result in OCI cancellation may amount to an excessive delegation of powers by the legislature and may give wide discretion to the government for cancellation of OCI.
The BJP has committed to apply National Register of Citizens (NRC) across India in order to identify citizens and “expel” illegal immigrants. There is a concern that the people who are unable to produce required documents to prove their citizenship and inclusion in NRC will be accepted as migrants and given Indian citizenship under the Bill but the Muslims who could not prove their citizenship, will risk statelessness[clarification needed] because they are not included under the Bill.
Prime Minister Modi said he was “delighted that the Lok Sabha has passed the Citizenship (Amendment) Bill, 2019 after a rich and extensive debate” and that the “Bill is in line with India’s centuries old ethos of assimilation and humanitarian values.” The majority of the Northeastern states members in the Lok Sabha supported the bill as their concerns were taken care by the bill.
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