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Illegal Migrants, Religion and Nationality

This Article is authored by Advocate Anil Malhotra.

Geneva based United National High Commission for Human Rights, Michelle Bachelet Jeria has stirred a hornet’s nest by publically proclaiming to move an intervention application in the Supreme Court questioning the Citizenship Amendment Act (CAA). A terse Indian rebuttal followed claiming “internal matter,” “sovereign right of Indian Parliament to make laws,” and “no foreign party has locus-standi on issues pertaining to India’s sovereignty.” What is this controversy all about and whose human rights are being violated.

An “illegal migrant” i.e. a foreigner entering India without valid travel documents is defined in the Citizenship Act and can be deported under the Foreigners Act, 1946 (FA) and The Citizenship Act, 1955 (CA). The Citizenship (Amendment) Act, 2019 seeks to add a proviso to the definition of “illegal migrant” under Section 2 of the CA. Resultantly, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants under the CA. Further the CAA seeks to reduce the number of years required for citizenship by naturalisation for the above mentioned communities as the existing period of residence in India from eleven years has been reduced to five years.

In sum and substance, The CAA now grants Indian citizenship to Hindus, Christians, Sikhs, Buddhist, Jains and Parsis who had come to India from Afghanistan, Pakistan and Bangladesh before December, 31 2014. Persons of these religions, who have migrated from these three countries, will have an opportunity to get Indian citizenship, even if they do not have requisite documentation in support of their claims. Such persons will not be deported for not possessing documents in proof of being Indian citizens, as they will not be treated as illegal migrants. The criticisms of CAA comes from persons professing the Muslim religion who do not find mention and have been excluded from the purview of the amendment specifically.

The Citizenship Amendment Bill 2019 (CAB) received assent in the Lok Sabha on December 11, 2019 and the Rajya Sabha passed the legislation on December 12, 2019. On the same day, the said Bill also received the assent of the President of India and it was notified by publication in the Gazette of India Extraordinary on December 12, 2019. CAA was brought into force by a notification on January 10, 2020 published in the Gazette of India Extraordinary. The validity of CAA has been challenged in a batch of 60 petitions which are pending hearing in the Supreme Court. No stay of the provisions of CAA was granted by the Supreme Court as the necessary enabling rules in support of the CAA have not yet been notified. These petitions raise issues of equality alleging violation of Articles 14, 21 and 25 of the Constitution and being against the secular character of the country as it has been averred that persons of Muslim religion have been excluded from being beneficiaries of the CAA. The Supreme Court will decide if religion can be a basis of segregating illegal migrants and if it is the autonomous prerogative of the Parliament to choose citizens on religion.

On another note, under the FA, disputes relating to questions of determination of nationality when a foreigner is recognised as a national of more than one country or where it is uncertain as to what nationality is to be ascribed to a foreigner, such person may be treated as the national of the country with which he appears to be most closely connected. The Passport (Entry into India) Act, 1920 (PEIA) and the FA permit removal or deportation of a person from India without providing any forum or procedure for determination of the question of the nationality of the foreigner or giving any statutory rights in this process. Tribunals to determine these questions are minimal. However, in the same breath today, the CA and the existing rules prescribe that if any question arises as to whether, when or how any Indian citizen had acquired the citizenship of another country, the Central Government shall first determine such question. No bar of religion is prescribed. The Supreme Court while interpreting these provisions has held that an Indian citizen could not be ordered to be deported or removed from India, unless the Central Government takes a conscious decision on merits upon holding a quasi-judicial enquiry, that he has ceased to be an Indian citizen. A foreign passport simpliciter will not label a person as a foreigner and proper judicial determination of nationality is a fundamental right. It is time our Parliament also reconciles these concepts of freedom, personal liberty and natural justice inter-twined with determination of nationality.

In today’s social milieu, international Indians qualify to be Overseas Citizen of India (OCI) as dual nationality is prohibited. Conversely, if such persons also wish to reconnect with their homeland, they ought not be bundled out as foreigners by invoking the colonial provisions of the (PEIA) and the FA, which offend fundamental freedoms. The CA itself had created harmony. The retention of a foreign passport today cannot lead to deportation and summary removal from India. Why then, do we need to retain the said 1920 and 1946 enactments which were enacted to regulate the entry of foreigners into India in circumstances prevailing in 1946. This is a serious issue which must engage the attention of Parliament. The controversy is bigger and larger.


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