Insights into Editorial: Understanding issues of illegal migration in new Citizenship Bill
Several Assamese have been protesting against the Citizenship (Amendment) Bill, 2016, which seeks to make foreign illegal migrants from some minority communities eligible for Indian citizenship.
- The proposed amendment is unprecedented, in the sense that that never before has religion been specifically identified in the citizenship law as the ground for distinguishing between citizens and non-citizens.
Why is it being opposed?
- According to the Assam Accord of 1985, illegal migrants who had entered Assam from Bangladesh after March 25, 1971, were to be detected and deported. But, the new Bill contradicts the terms of the Accord.
- Besides, the Bill seeks to grant citizenship to non-Muslim minorities from Muslim majority countries, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Some term this move as “communally motivated humanitarianism.”
- Also, the Bill seeks to protect only non-Muslim minorities while Muslims who migrated would continue to be harassed as illegal migrants.
- The new Bill also violates Article 14 of the constitution, say activists. Since Article 14 of the Constitution guarantees equality to all persons, citizens and foreigners, differentiating between people on the grounds of religion would be in violation of the constitution.
The Citizenship (Amendment) Bill, 2016 was introduced in the Lok Sabha in July this year. The Bill has been referred to a Joint Parliamentary Committee of both the Houses, under the chairmanship of Dr Satyapal Singh for examination and presenting a report to the Parliament.
- The Bill amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.
- Under the previous Act, one of the requirements for citizenship by naturalisation 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 six years for persons belonging to the same six religions and three countries.
- The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law.
Who is an illegal migrant?
The 1955 Act defines an illegal migrant as a foreigner who enters India without a valid passport or travel documents or stays beyond the permitted time.
How does the law treat them?
Illegal migrants may be imprisoned or deported. They and their children are ineligible for Indian citizenship under the Citizenship Act of 1955.
However, certain benefits have been granted to some groups of illegal migrants. In September 2015 and July 2016, the central government exempted certain groups of illegal migrants from being imprisoned or deported. These are illegal migrants who came into India from Afghanistan, Bangladesh or Pakistan on or before December 31, 2014, and belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities. Illegal migrants from this group cannot be imprisoned or deported for not having valid travel documents.
Legal fallacies of the proposed law:
- The proposed law violates India’s long-standing refugee policy. Although India does not have a codified refugee policy, the basic tenants of the scheme were listed by Jawaharlal Nehru during the Tibetan refugee crisis. One of the primary conditions given then was that refugees would have to return to their homeland once normalcy prevailed. The proposed law not only provides citizenship rights to such refugees, but greatly relaxes the procedure to avail of them.
- From reducing the registration fees to Rs 100 from Rs 3000 to delegating the authority from the Union government to district magistrate for speedy processing of applications, the proposed law serves citizenship to illegal immigrants on a platter.
- The Bill provides wide discretion to the government to cancel OCI registrations for both major offences like murder, as well as minor offences like parking in a no-parking zone or jumping a red light.
The Citizenship (Amendment) Bill also fails on the tenets of international refugee law. Although India is not a signatory to the 1951 UN Refugee Convention, granting refuge based on humanitarian considerations is arguably a norm of customary international law. There are two fallacies with the proposed law in this regard:
- First, the Bill terms minority religious people as migrants, when they are not migrants but refugees. The word migration refers to the voluntary movement of people, primarily for better economic prospects. In contrast, refuge is an involuntary act of forced movement. The concerns of refugees are human rights and safety, not economic advantage. The purpose and intention of the Bill, as stated by the home minister, is to provide shelter to vulnerable, religiously persecuted people whose fundamental human rights are at risk. The correct terminology is important because the laws and policies for migrants and refugees are entirely different.
- Second, shelter to individuals of a select religion defeats not only the intention but also the rationality of refugee policy. If the motive of the government is to protect religiously persecuted people in the neighbourhood, the question of why they are ignoring the Muslim community is inevitable.
Notwithstanding the tampering of domestic law with religious markers, the proposed Bill, if passed, will put our international relations in jeopardy. The Bill will stamp these countries as institutions of religious oppression and worsen bilateral ties in an already skewed regional socio-political atmosphere. The new law will also act as a push to the movement of India’s citizenship policy on jus soli to the racially manifested jus sanguine principle, something which was actively avoided by our constitution makers.
There is no harm in accommodating religiously persecuted people in the country. However, India’s ‘law of return’ should be looked at with suspicion, for it severely undermines the otherwise secular socio-legal framework of our nation. While religious persecution is a reasonable principle for differentiation, it cannot be articulated in a manner that dilutes the republican and secular foundations of citizenship in India, and goes against constitutional morality.