The total population of a country is carved up into two classes, one is Citizens, and another one is aliens. Basically, a citizen is a person who enjoys all kinds of liberties such as civil, political, and economic whereas the aliens do not. The concept of citizenship is normally understood as the relationship between the individuals, and the State. This relationship consists of mutual rights and responsibilities. Citizenship is often acknowledged as the association between an individual, and the State.
The most commonly accepted definition of citizenship comes from the English sociologist T.H. Marshall; according to him citizenship means, “full and equal membership in a political community.” From the above stated description, citizenship denotes membership in a political community, which in our current perspective is a nation. The nation offers many facilities, privileges, and some rights to citizens. The nation also does its best for the welfare and development of citizens. They provide them educational facilities, make their lives better and in return, citizens have to follow certain rules and regulations of the country. They have to protect or use judiciously all the facilities provided by the government. Citizens are expected to be terribly loyal to their nation. They are expected not to misuse the rights, privileges, and facilities conferred by the government. Therefore, citizenship reflects a specific aspect of the relationship between people living together in a nation. It emphasizes political allegiances and civic loyalty within the community rather than any cultural / emotional identity.
Historical Development of the Concept of Citizenship
The beginning of the idea of citizenship is usually traced to the prehistoric Greek and roman republics. The expression, “citizenship” is derived from the Latin word ‘civis’ and ‘polities’, which implies members of the polis and city. With the evolution of capitalism and liberalism, the notion of citizen as an individual bearing rights irrespective of discrimination became entrenched. Thus, a citizen means an indigenous or a natural member of a state or nation who has fidelity to its government and is entitled to its protection, or we can say that citizen means a de jure recognized inhabitant or national of a specific state or commonwealth, either native or natural. It may be noted that the idea of citizenship has been evolving since the 19th century but the substance has not remained the same rather it has changed according to the specific historical contexts.
The idea of the citizenship can be traced out into the following periods:-
In this period the idea of citizenship is based on the principle of active political participation. The political and public aspects of a person have given more importance than the private and familial.
In this period the word citizen has been defined as one who enjoys the “common liberty and protection of the authority”. Thus a new principle has evolved i.e., “the principle of imperial inclusiveness”, which says that protection of authority was needed to protect the private world or domain.
Development in 19th Century
Due to growing influence of liberalism and the concept of capitalist market, the liberal notion of citizens as persons bearing certain rights in order to promote and protect individual interest gained precedence. Thus, in this period citizenship has been treated as a legal status which provides the specific rights ensuring protection from the inference of the State, was important to the liberal understanding of the state and politics.
Development in late 20th century
Until the 20th century the dominance of citizenship was understood as a legal status. This dominant has been debated and a question arose that whether a citizen can enjoy rights irrespective of discrimination? In most of the western part ethnic, religious and racial communities have passed for rights which look at their special cultural contexts and substantiate the formal equality of citizenship. Thus the idea of “differentiated citizenship” was coined to accommodate the needs of specific cultural groups.
The Citizenship (Amendment) Act, 2019
The controversial Citizenship Amendment Act, 2019 (CAA) has been approved by the parliament to makes it easy for the non-Muslim immigrants from India’s three Muslim-majority neighbours such as Pakistan, Bangladesh and Afghanistan to become citizens of India. Even it has not been mentioned particularly, however, the fact that “it enables Hindus, Sikhs, Jains, Parsis and Christians facing religious problems” shows that the Muslims have been eliminated to become the Indian citizens.
Review of Literature
The present citizenship Act, 2019 is unconstitutional as it is against Article 14 of the Constitution. The classification made by the government is not reasonable; rather it is, “class legislation.” Hence, it is to be declared as unconstitutional and void. The present Act also violates the fundamental principles laid down under the Preamble. In Kesavananda Bharati v. State of Kerala, the Apex Court has held that the Parliament has no power to “amend/destroy/annihilate” the basic structure of the Constitution. The same theory has been expanded in the case of S. R Bommai v. Union of India, the Court held that “Secularism is the basic feature of the Constitution.” Therefore, to introduce the concept of religion to become a citizen is unconstitutional. Further CAA classifies a person who has come to India illegally from 3 specific countries, and not from Sri Lanka, Bhutan, Myanmar, Tibet and China is unreasonable. As this kind of mentality will lead to religious persecution. Thus, the classification for the purpose of the legislation is irrational having no nexus between the basis of the classification and the objective of the Act.
CAA divides the illegal migrants into two categories, one class belongs to the person who professes the specific 6 religion as has been mentioned, and the other class belongs to the people who are not from that 6 religion. Thus, Muslims and Jews are excluded and this classification is unreasonable and arbitrary. Even the Muslims belonging to minority sects i.e., Ahamadiyas and Shias also become victims of religious persecution. It is well known from the above fact that excluding the Tamilian Hindus and Muslims from Sri Lanka, Rohingya Muslims from Myanmar who migrated to our country will not be granted to be a citizen is clear violation of Article 14 of the Indian Constitution.
The CAA and Section 3(1) of the Citizenship Act, 1955 are in contravention of the Article 21 of the Indian Constitution as because the provisions of CAA has not clearly introduced the definition of illegal migrant and has decided to give protection to those migrants who belong to the 6 specific religions, and from the 3 specified nations. Such presumption is not corroborated by any specific data rather based on presumptions. Here, it is important to refer to the report submitted by the then Governor of Assam, Lt. General S K Sinha in the year 1999 where he categorically mentioned that the reason for migration of the individual is due to economic reasons rather than religious persecution. Similarly, that the specific 6 religions who are supposed to be the victim of persecution are made without any basic, or determinative principles. It is legitimate to assume that exclusion of the individual is due to the feeling of insecurity and nothing else. Thus, to make any law without having sufficient data is arbitrary and should be declared unconstitutional.
In Pranav kumar & ors v. Union of India, a petition has been filed by the petitioner challenging the Passport (Entry into India) Amendment Rules, 2016 and the Foreigners (Amendment) Order, 2016. The government has issued a notice on 01.03.2016 to include, “Afghanistan” in clause (ha) of Sub rule (1) of Rule 4 of the Passport (Entry into India) Amendment Rules, 2016. At the same time, the Government of India issued a Foreigners (Amendment) Order, 2016 to include “Afghanistan” in section 3A of the Foreign Order, 1948.
Another writ has been filed in Narikatva Aain Songsudhan Birodhi Mancha v. Union of India, challenging the notification and order issued under Section 16 of the Citizenship Act of 1955 for granting of certificate of naturalization under Section 5 or for grant of certificate of naturalization under Section 6 of the Citizenship Act of 1955 concerning any person belonging to a minority community in Afghanistan, Bangladesh and Pakistan viz. Hindus, Sikhs, Buddhist, Jains, Parsis and Christians.
Subsequently, on 31.08.2019, a National Register of Citizens (NRC) was being prepared by the State as per the direction of the Hon’ble Court. On 31.12.2018, NRC authorities prepared a list which contained the names of 40 lakhs peoples out of whom most were alleged to have illegally migrated into Assam and to be excluded from the final NRC. As per the rules, these people were provided an opportunity to present their claims for being incorporated in the final draft of NRC and were also heard thereafter. In June 2019, according to a further testimonial issued by the coordinator of NRC 1,02,462 individuals were further barred during the course of corroboration conceded out by the local registrars of the Citizen Registration. The final record prepared by NRC shows that out of a total 3,30,27,661 applicants only 19,06,657 applicants were excluded.
The Central Government enacted the Citizenship (Amendment) Act, 2019 on 12.12.2019, which inter alia seeks to make illicit migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan eligible for citizenship on the ground that they being religious minorities in their respective countries are victims of religious persecution. The said Act also makes provisions relating to Overseas Citizens of India (OCI) including a provision to permit termination of the OCI registration if the person has dishonored any law notified by the Government of India.
The un-amended Act, 1955 allowed a person to apply for citizenship by naturalization, as per the provisions of Section 6 r/w 3rd Schedule of the Citizenship Act, 1955. However, Section 3 of the impugned Act has inserted, “Section 6B” in 1955 Act, which inter alia creates immunity for Hindu, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, with consider to constraint mentioned in Clause (d) of the 3rd Schedule.
The newly amended Act grants special treatment to a group of illegal migrants who belong to the specific 6 religions such as Hindus, Sikhs, Christians, Parsis, Jains and Buddhists from the 3 nation’s viz. Bangladesh, Pakistan and Afghanistan. Further sections 5 and 6 of the Act also made subsequent amendments to section 18 and 3rd schedule of the Citizenship Act, 1955 respectively.
Therefore, the bellowed writ petition has been filed.
In Association for protection of Civil Rights & ors v. Union of India, a PIL has been filed under Article 32 to challenge the following as unconstitutional:
- The Citizenship Amendment Act, 2019
- Section 3(1) of the Citizenship Act, 1955
- 3rd Schedule of the Citizenship Act, 1955
- The Passport (Entry into India) Amendment Rules, 2015
- Passport (Entry into India) Amendment Rules, 2016
The petitioner contended that section 3(1) of the Citizenship Act, 1955 is unconstitutional as because of the provisions sets out parameters for people being granted citizenship of India based on their date of birth and religions.
Whatever the contention may be, the case is under sub judice. So, the constitutionality of the Act is yet to be decided.
I have never ever seen such a legislation which legalizes discrimination and fractionalized the migrants into Muslims and non-Muslims, the Act clearly as well as without ambiguity seeks to ensure religious chauvinism in the law which is irreconcilable to our long, secular constitutional spirit. Whereas it is the job of constitutional experts to determine whether this Act violates the essence of constitution, it seems certain for us that it violates its spirit because it has been noticed that a lot of minorities’ communities from Assam will lose their linguistic, cultural, social, and political rights.
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BY CHANDI PRASAD KHAMARI | P G DEPARTMENT OF LAW, SAMBALPUR UNIVERSITY