Why the Citizenship Bill 2016 is ill-conceived, communal and ill-advised

The law needs to be more humane.

 |  5-minute read |   11-06-2018
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The issue of “migrants” and “citizenship" is a matter of concern for the Northeastern states who fear flooding of immigrants from India’s neighbours: Bangladesh and Myanmar. Having resolved Indian citizenship on the basis of birth (jus soli), descent (jus sanguinis), naturalisation (jus naturalis) or registration, the Constitution and the Citizenship Act 1955 dealt with the then vexed issue of Pakistani migrants in the aftermath of Partition.

In 1985, as a consequence of the Bangladesh war and the Assam Accord, Citizenship Act got a new provision (Section 6A) whereby those who were ordinarily resident on January 1, 1966, and on the electoral roll for the 1967 elections were deemed citizens.

Migration status

Those who came between January 1, 1966 and March 25, 1971 would need to have their status determined by tribunals under the Illegal Migrants (Determination by Tribunals) Act 1983. In the Sonowal case (2005-07) this procedure, which was peculiar to Assam, was abolished. In 2005, 88,770 cases were pending and 12,848 migrants were declared illegal. The Governor’s report showed an excessive influx of Bangladeshis playing on the xenophobia of the Northeast states.

Indian citizenship laws came to be more relaxed in favour of Overseas Citizens of India (OCI’s) from 2004 to 2015. In 2003 and 2005, a kind of dual citizenship was offered to OCI’s in 16 countries excluding, Pakistan and Bangladesh. India was claiming links with all "Indians" abroad as part of a Greater India policy.

The Citizenship (Amendment) Bill 2016 tried to extend this process in ways that were not above reproach and with and consequences which threatened to undermine the Bill’s future. The Statement of Objects and Reasons of the Bill of 2016 proposed to make particular minorities who entered into India without valid travel documents or whose documents had expired to become eligible to apply for citizenship.

They could not apply under the registration provisions (Section 5) or the naturalisation provisions which required a 12-year residency (Section 6). As a step back, OCI’s could lose their status if they acted contrary to the Citizenship Act or any other law giving the government a pick and choose power.

The technique used by the Bill of 2016 peculiarly granted legal migration status to “minority communities, namely Hindus, Sikhs, Buddhists, Parsis and Christians from Afghanistan, Bangladesh and Pakistan.” The meaning is clear in the sub-texts. The central government would exempt these “minorities” from the provisions of the Foreigners Act 1946 and Passport Act of 1920.

Importantly, these five minorities do not have to be persecuted “refugees”. They just have to show that they belong to these minorities. Although the mantle stretches to Buddhists, Christians and Parsis, that is simply a front — an attempt to make a symbolic statement about the Muslim countries on India’s borders and to stand up for Hindus, Sikhs and Buddhists.


Minority protection

Certainly, the Afghan Sikhs have had a problem getting citizenship. But, in the main, this is a Hindutva programme in which India (as a de facto Hindu state) is playing the role of protector of the Hindus in the neighbourhood states and, through OCI, worldwide. In case Muslims or others fall under the OCI category, under the Bill of 2016 they can be removed.

There is a dual target. The first is against the States of Pakistan, Afghanistan and Bangladesh — all Muslim states. The indictment is that these states do not treat minorities well. Coming as it does from a possible parliamentary statute, this indictment is heavy. Of course, this could lead to the counter-argument that India does not treat its minorities well either.

But as far as these states are concerned the other persecuted minorities are ignored such as the Ahmadiyyas or Bohras in Pakistan. If Iran were to be included, what about the Bahais? If China were included, Buddhists would be included as a minority as, indeed, the Muslim Uighurs. But India does not want to play the diplomatic odds with either Iran or China.

Racist attitude

The former is a supplier of oil; and the latter too powerful. Indeed, when the Chinese delegation came to India, care was taken to curtail Uighur protests. If anyone deserves protection, it is surely the Muslim Rohingyas from the Rakhine State in Myanmar.

In 1982, the Myanmar citizenship law was pointedly racist to exclude the Muslim Rohingyas. After the 2012 riots and murders around Sittwe, the Rohingyas suffer acute persecution. But, at present, the BJP led government does not care about the Muslims and has taken a stance in the Supreme Court of India which is viciously negative. Suu Kyi’s NLD is unlikely to protect Rohingyas.

The second aspect of the Bill is the window dressing of adding Christians and Parsis. This government does not really care about the Christians and surmises that the Parsis can take care of themselves. The upshot is necessarily communal. Why was this policy declared in the first place? To indict the Muslim neighbours and wear "Hindu Rashtra" on India’s sleeve by projecting Sikhs and Buddhist as Hindus. This pro Hindu stance is traceable to BJP’s election manifesto to be renewed, no doubt, in 2019.

BJP’s coalition partner, the Asom Gana Parishad (AGP), sees this in a different way. If the Bill goes through, Hindus will not have to prove their credentials unlike Muslims. The AGP resists this a Hindu invasion — as, indeed, does Meghalaya threatening a breaking of ties.

The citizenship process should be more efficient and humane; but this Bill is ill-conceived, communal and ill-advised.

 Also read: Citizenship Amendment Bill — What is it the Assamese fear the most


Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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