Thursday, 27 April 2017

Harshit Anand

The Citizenship (Amendment) Bill, 2016: Our own Trumpism?

trump-lawji

Recently, when Donald Trump, the incumbent US President, decided to cut short immigration from seven Muslim-majority countries, there was a great public outcry. A lot of Indians registered their disapproval of the President’s ‘xenophobic’ executive order on twitter and other social media platforms. It is interesting however, that in July 2016, without much uproar and activity, a bill was introduced in the parliament of India which bore a clear mark of majoritarianism. The Bill has hardly caused any furor on social media sites; even in the political annals, there does not seem much disturbance. It is the author’s assertion that the Citizenship (Amendment) Bill, 2016 makes an attempt to introduce a tinge of religious difference into a citizenship law which currently does not lean in the favour of any religion.

The ostensible ‘purpose’ of the Bill    

A cursory reading of the Fundamental Rights chapter of the Indian Constitution would reveal that the principle of universalism and inclusiveness is deeply embedded in probably the most important document in the country. Not all constitutions delineate the source and criteria for citizenship but in the wake of partition, it became imperative that the framers provide a basic definition of the term. It was only for the purpose of knowing the citizenship of those who moved in large numbers across the borders of Pakistan and India. In Articles 5-11, our Constitution incorporated both the conceptions of citizenship- citizenship by birth in the country and citizenship by descent. The Citizenship Amendment Act does not allow illegal migrants to acquire Indian citizenship under The Citizenship Act, 1955. As defined in Section 2(1) (b) of the Act, an illegal migrant is an alien who is present in India and does not possess appropriate travel documents like a passport or one, who possesses valid documents but has exceeded the permitted limit of her stay in India. The Citizenship (Amendment) Bill, 2016, which is currently being deliberated upon by a joint parliamentary committee, aims to relax the conditions for citizenship by naturalisation of Hindus, Sikhs, Parsis, Christians, Buddhists and Jains from Pakistan, Bangladesh and Afghanistan. It makes religion one of the grounds of eligibility which is a prima facie violation of right to equality guaranteed under the Constitution.

Transgression of a significant Constitutional principle 

By the operation of Article 14, equality before law and equal protection of the laws are guaranteed to citizens as well as foreigners. Furthermore, only that classification is permitted under Article 14 which has a reasonable objective. The Statement of Objects and Reasons of the aforementioned Bill does not disclose any legitimate aim behind creating a distinction between illegal migrants on the basis of the religion to which they belong. Clearly, there is something amiss about the rationale behind the law.  

Ambiguity in the Bill

The proposed Bill also provides for cancellation of Overseas Citizen of India (OCI) registration if it is found that the cardholders have violated any law. The Citizenship Act, 1955 allows foreigners to register as an OCI if they are of Indian origin or are a spouse of a person of Indian origin. Such registrations confer many benefits on these foreigners, such as the right to work in India. A cardholder’s registration, as according to the 1955 Act, can be cancelled only if the cardholder has violated a law for which she suffers an imprisonment of two years or more. The Act unambiguously stipulates that such violation must occur in under five years of her OCI registration. Inclusion of another ground for OCI registration cancellation makes these provisions redundant, as even petty violations and violations committed after five years of registration will form valid grounds for registration cancellation. Therefore, the Bill must shy away from vesting extensive discretionary power in the central government.  
   
Exclusionary nature of the Bill

The policy of pluralism forms the bedrock of the Constitution of India as well as of our socio-legal framework. Differentiation on the basis of religion poses a danger to this spirit of co-existence which is explicitly laid down in the preamble and the bare provisions of the pre-eminent law of the land. The proposed Bill goes against the basic tenets of international refugee law framework, which envisages a system in which refuge is based solely on humanitarian considerations and no exclusion takes place on the basis of religion. Moreover, the Bill must also make provisions for those Muslims who suffer persecution in the neighboring States of Sri Lanka, China and Myanmar. The objective of the Bill is to protect people persecuted on the ground of religion in the neighborhood and therefore, such protection must also extend to the Muslim community, such as the Rohingyas Muslim from Myanmar.

Conclusion

While Trump’s orders do not take names of any specific religious groups, the proposed amendment Bill blatantly prohibits arrival of Muslims from Bangladesh, Pakistan and Africa. The Bill, knowingly or unknowingly, also gives traction to the idea that India somehow is a ‘Hindu’ State and others are lesser mortals. So before pointing fingers at the United States or Trump, let us clear our own mess, shall we?