Adv. Azmat H. Amanullah dispells more statements made by the Press Information Bureau (PIB) of India with respect to The Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) for the second volume of factual responses. Check out the first volume here.
Author's Disclaimer: The term ‘illegal migrant’ is used because the Act uses this terminology. The correct reference should be ‘undocumented migrant’.
1. Why shouldn’t Baluchis, Ahmediyas in Pakistan, Rohingyas in Myanmar not be considered for this kindness?
AS PER PIB: The CAA has not stopped any foreigners of any country from applying for Indian Citizenship under the Citizenship Act, 1955. Baluchis, Ahmediyas & Rohingyas can always apply to become Indian citizens as and when they fulfill the qualifications provided in the relevant sections of The Citizenship Act, 1955
FACT: The PIB response is incorrect. After the 2004 amendment to the Citizenship Act, the term ‘Illegal Migrant’ came to be defined for the first time as persons who entered India without valid documentation/passports and/or who stayed in India after the expiry of the validity of such documentation.
This 2004 amendment then went on to PROHIBIT ALL illegal immigrants from even being eligible to apply for Indian Citizenship under sections 5 and 6 of the Act, i.e., by processes of naturalization or registration.
So, these Baluchis, Ahmediyas & Rohingayas CANNOT apply for Citizenship after the 2004 amendment. However, after CAA 2019 persons from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 will no longer be treated as illegal migrants under the Act and will, therefore, become eligible to apply under sections 5 and 6 of the Citizenship Act to become Citizens.
It would only be Baluchis, Ahmediyas and Rohingyas who have entered the Country ‘legally’ who would be able to apply through regular processes. So, ask yourself this; what are the Indian Government’s policies on allowing these communities to enter and reside in India legally and how many such persons are here?
In fact, Rule 3 of the Passport (Entry into India) Rules 1950 prohibits any person from outside India to enter or attempt to enter India unless he has a valid passport AND he enters through the ports or places specified by Govt. Rule 4 provides the exemptions to Rule 3. Rule 4 was amended on 07.09.2015, whereby the following persons were exempted from being prohibited to enter India unlawfully -
persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December 2014…
Similarly, under section 3 of the Foreigners Act, 1946 the Govt. is entitled to make Orders, inter alia, prohibiting, regulating or restricting the entry of foreigners into India.
In exercise of these powers, u/s 3 of the Foreigners Act, 1946, the Foreigners Order, 1948 were enacted and amended on 07.09.2015 to exempt a certain class of Foreigners from Application of the Foreigners Act and orders thereunder in respect to their stay in India without such documents or after expiry of such documents who entered India on or before 31.12.2014. It reads:
3A. Exemption of certain class of foreigners. - (1) Persons belonging to minority communities in [Afghanistan, Bangladesh] and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-
(a) without valid documents including passport or other travel documents and who have been exempted under rule 4 from the provisions of rule 3 of the Passport (Entry into India) Rules, 1950, made under section 3 of the Passport (Entry into India) Act, 1920 (34 of 1920); or
(b) with valid documents including passport or other travel document and the validity of any of such documents has expired,
are hereby granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India without such documents or after the expiry of those documents, as the case may be, from the date of publication of this order in the Official Gazette.
Thus, as a result of the above, ‘illegal Muslims’ from these countries WILL be deported since they will have no protection like other communities under the Citizenship Act, the Passport (Entry to India) Act 1920, Passport (Entry into India) Rules 1950, Foreigners Act, 1946, Foreigners Order, 1948
Thus, ‘kindness’ shown is religion-specific.
2. In what way does it benefit Hindus, Sikhs, Jains, Buddhists, Parsis, and Christians from these three countries?
AS PER PIB: All legal migrants (whose travel documents are complete) including the aforementioned minority communities from three countries were and are and will continue to be eligible to apply for Indian citizenship if they fulfill the qualifications laid down in the Citizenship Act, 1955. The CAA has not changed this situation whatsoever.
Only some migrants from the aforesaid communities and countries will benefit from the CAA if they have incomplete or no documents or their documents have expired and they have taken shelter in India because of persecution on grounds of religion up to December 2014. They have been excluded from the definition of “illegal migrants” in The Citizenship Act, 1955. Unlike other foreigners, they are eligible to get citizenship after a total residency period of six years. For other foreigners, this period is twelve years.
FACT: The PIB answer is correct though misleading. As things stand under the Citizenship Act today, a person can become a Citizen through Birth, Descent, Registration, and Naturalization.
The CAA, directly, does not affect the first two categories and applies to the second two; naturalization and registration. In other words, from the pool of ‘illegal migrants’ from three countries, persons from religious communities except Muslims will get Citizenship under the CAA.
It may be noted that the CAA also specifies that these persons who become citizens under sections 5 and 6 will be deemed to be citizens from the date of their entry to India. Thus, since they shall be deemed to be Indian Citizens from the date of their entry into India, their children will automatically become eligible for Citizenship by Birth or Descent, as applicable.
3. Doesn’t India have an obligation under the UN to take care of refugees?
AS PER PIB: Yes it does. And it is not shying away from it. There are more than two lakh Sri Lankan Tamils and Tibetans in India and more than fifteen thousand Afghans, 20-25 thousand Rohingyas and a few thousand other refugees of different nationalities presently live in India. It is expected that someday these refugees will return to their homelands when conditions improve there. Indian is not a signatory to the UN Convention of 1951 and the UN Protocol of 1967 on Refugees. Secondly, India is under no obligation to offer such migrants citizenship. Each country including India has its own rules for naturalization.
FACT: India has no defined procedure or law for categorizing or identifying refugees or asylum seekers. India has not signed the UN Convention of 1951 and the UN Protocol of 1967 on Refugees as mentioned by the PIB.
Until the issue of Rohingyas in India, India had a proud tradition of giving homes to neighbors in distress: Tibetans in the 1960s, East Pakistanis in the 1970s, Sri Lankans in the 1980s and Afghans in the 1990s. This was a religion-neutral policy.
When it came to the Rohingyas, however, India did not uphold its track record for accepting persons in distress. It has deported various families despite the threat of genocide being faced by them in Myanmar. Indian authorities and the Government have, time and again, sought to make anti-Rohingya statements using words such as ‘security threat’ despite there being no basis for such fear-mongering. In fact, in a case before the Supreme Court India, despite the UNHCR registering and recognizing the 40,000-odd Rohingyas in India to be refugees and granting refugee identity cards to them, the Centre has opposed the claim of two Rohingya petitioners who have approached the Court against the Government’s plan to deport the 40,000 Rohingya in India.
The obligation to refugees is a moral and humanitarian one. The CAA makes a distinction on religion-based parameters which cannot be a fair or moral consideration. This is what makes the CAA amoral.
4. Will illegal Muslims immigrants from these three countries be automatically deported under this Law?
AS PER PIB: No. The CAA has absolutely nothing to do with the deportation of any foreigner from India. The deportation process of any foreigner irrespective of his religion or country is implemented as per the mandate of the Foreigners Act, 1946 and/or The Passport (Entry into India) Act, 1920. These two laws govern entry, stay movement within India and exit from India of all foreigners irrespective of their religion or country.
Therefore, the usual deportation process would apply to any illegal foreigner staying in India. It is a well-considered judicial process that is based on a proper inquiry by the local police or administrative authorities to detect an illegal foreigner. It is ensured that such an illegal foreigner has been issued a proper travel document by the embassy of his country so that he can be duly received by officials of his country when he is deported.
In Assam, the process of deportation happens only after the determination of such a person as a “foreigner” under The Foreigners Act, 1946. Then he becomes liable for deportation. Therefore, there is nothing automatic, mechanical or discriminatory in this exercise. State Governments and their district-level authorities enjoy the power of Central Govt. under Section 3 of the Foreigners Act and Section 5 of The Passport (Entry into India) Act, 1920 to detect, detain & deport any illegal foreigner.
FACT: The CAA prohibits any Persons from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 from being considered at illegal migrants. Thus, what remains is primarily Muslims from these three countries who entered India without documents.
Thus, once the NRC process is concluded, it will be only these Muslims who will be placed into detention camps and, one assumes, eventually deported. However, as is the issue being faced in the Assam NRC, the Government appears to have no strategy in place for deportation. This will result in those declared to be illegal to languish indefinitely in detention centers.
What is more telling is the following-
The Passport (Entry to India) Act 1920 which provides that the Central Govt. can make rules regarding persons entering India with passports including to permit or prohibit people from entering the country without passports and to grant exemptions.
Under this Act, the Passport (Entry into India) Rules 1950 were enacted. Rule 3 prohibits any person from outside India to enter or attempt to enter India unless he has a valid passport AND he enters through the ports or places specified by Govt. Rule 4 provides the exemptions to Rule 3.
On 07.09.2015, in the Passport (Entry into India) Rules, 1950, in rule 4, in sub-rule (I), after clause (h), the following clause was inserted exempting these persons from being stopped from entering the country (or to enable such persons to continue to stay in India if ‘caught’ without documents)-
"(ha) persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014-
(i) without valid documents including passport or other travel documents; or
(ii) with valid documents including passport or other travel document and the validity of any of such documents has expired
Similarly, under section 3 of the Foreigners Act, 1946 the Govt. is entitled to make Orders, inter alia, prohibiting, regulating or restricting the entry of foreigners into India.
In exercise of these powers, u/s 3 of the Foreigners Act, 1946, the Foreigners Order, 1948 were enacted and amended on 07.09.2015 to exempt a certain class of Foreigners from Application of the Foreigners Act and orders thereunder in respect to their stay in India without such documents or after expiry of such documents who entered India on or before 31.12.2014.
It exempted only persons belonging to minority communities in [Afghanistan, Bangladesh] and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December 2014.
Thus, as a result of the above, even prior to the CAA, ‘illegal Muslims’ from these three countries would still be considered eligible for detention and deportation since they would have no protection unlike other communities under the Citizenship Act, the Passport (Entry to India) Act 1920, Passport (Entry into India) Rules 1950, Foreigners Act, 1946, Foreigners Order, 1948.
5. Does the CAA affect Indians (Hindus, Muslims, anyone)?
AS PER PIB: No. It has absolutely nothing to do with any Indian citizen in any way. The Indian citizens enjoy Fundamental Rights conferred on them by the Constitution of India. No statute including the CAA can abridge or take them away. There has been a misinformation campaign. The CAA does not affect any Indian citizens, including Muslim citizens.
FACT: This response is incorrect.
The very basis for an NRIC process (which the PIB agrees shall follow the CAA) is that each person in India today (citizen, immigrant, whatever their status may be) shall have to prove they are Citizens. Thus, the concept of ‘Indian Citizens’ as it stands today will not matter since everyone, by the NRIC, will be assumed to not be a Citizen till they prove it.
Post CAA, all non-Muslims will be entitled to become Citizens of India provided they claim themselves to be from the three countries specified under the CAA (irrespective of whether they were actually migrants or simply Indians without documents).
6. What about Sri Lankan Tamils?
AS PER PIB: India has provided citizenship to 4.61 lakh Tamils of Indian origin after signing PM level agreements signed in 1964 and 1974. Presently ninety-five thousand Sri Lankan Tamils are living in Tamil Nadu on Central and State Government subsidies and grants. They can apply for Indian citizenship whenever they become eligible.
FACT: India had earlier provided citizenship to certain identified Sri Lankan Tamils in 1964 and 1974. However, currently, there are about 59,000 Sri Lankan Tamil refugees in the 100-plus refugee camps in Tamil Nadu and nearly 30,000 outside the camps with no Citizenship. Additionally, while about four lakh Tamils came to India following the two Indo-Sri Lanka pacts, the vast majority of people of Indian origin, whom the CAA does NOT cater to, are still in Sri Lanka.
Thus, the PIB response does not clarify that Tamils of Indian origin, who come within the definition of ‘illegal migrants’ under the CAA shall NOT be able to apply for Citizenship through Naturalization or Registration.
It does not clarify that these Tamils have NOT been given the exemption granted under the CAA nor does it provide an explanation of why. This is telling.
7. Why only these three countries? And why only religious persecution of above-notified denominations?
AS PER PIB: The CAA deals with persecution on religious lines in three neighboring countries where the Constitution provides for a specific State religion. Followers of other religions have been persecuted in these three countries. The Bill is very focused and provides a remedy for a particular situation in which some foreigners of these six minority communities find themselves.
FACT: There is no rational or reasonable explanation of why only these three communities from these three countries were chosen. Both with respect to the choice of communities (since, even Muslims, Jews and other religions and sects from these three countries have historically faced persecution) and the choice of countries (since there are other persecuted minorities from other neighboring countries also).
As per the PIB, the basis for determination under the CAA was:
Neighboring countries with a specific state religion, i.e., Islam
Minority communities from these three countries (with a state religion) that faced ‘Religious Persecution’ (though the term persecution is not defined)
This determination has no intelligible logic or differentia because of many reasons. Some are as follows:
Migration, legal and undocumented, happens to India from various countries including from Myanmar, Sri Lanka, Afghanistan, Pakistan, Bangladesh, and Bhutan.
Buddhism is the official state religion of Sri Lanka. Yet the CAA focusses only on Islamic countries and ignores the Indian Origin Sri Lankan Tamils who are Hindus and the fact that many such persons in India are undocumented (illegal migrants).
Buddhism is the unofficial religion in Myanmar with 88% of the population being Buddhists. Rohingyas have been declared by the UN to be Refugees due to their persecution for religious reasons in Myanmar in recent years. Yet the CAA does not include them.
Pakistan and Bangladesh do have an official state religion, however, their Constitutions guarantee freedom of religion to all citizens irrespective of religion. Yet the CAA puts Pakistan, Bangladesh, and Afghanistan in the same bracket without assessing the impact of religious persecution on various groups.
Christians, Hindus, Atheists, Ahmadis, Hazaras, and Shias are all religious groups in Pakistan who have, at times, been discriminated against. In some cases, Ahmadi worship places and their worshippers have also been attacked. The Pakistani Constitution declares Ahmadis not to be Muslims. Yet the CAA does not protect these Ahmadiyas, the Shias, the Hazaras or the atheists who are also persecuted.
There is no definition of what amounts to ‘religious persecution’ or an assessment of the present-day nature or degree of such persecution in these three countries. In fact, the CAA does not even mention the words ‘religious persecution’.
Thus, the only common theme in the CAA appears to be to protect anyone who is non-Muslim from three countries to the exclusion of all other groups from these and other neighboring countries who face persecution- religious or otherwise.
8. Does this mean that Muslims from these 3 countries can never get Indian citizenship?
AS PER PIB: No. Muslims from these three and all other countries can always apply for Indian citizenship and get it if they are eligible. The CAA has not stopped any foreigner from any country from taking citizenship of India provided he meets the existing qualifications under the law. During the last six years, approximately 2830 Pakistani citizens, 912 Afghani citizens, and 172 Bangladeshi citizens have been given Indian citizenship.
Many hundreds of them are from the majority community in these three countries. Such migrants continue to get Indian citizenship and shall also continue to get it if they fulfill the eligibility conditions already provided in the law for registration or naturalization. About 14,864 Bangladeshi nationals including many from the majority community were also granted Indian citizenship after incorporating more than fifty enclaves of Bangladesh into Indian territory post the boundary agreement between the two countries in 2014.
FACT: These answers are designed to mislead. No Muslim from these three countries, who falls within the definition of ‘illegal immigrant’ under the Citizenship Act will be able to apply for Citizenship AT ALL under section 5 and 6 of the Citizenship Act unlike the non-Muslims from these three countries.
There is absolutely no mention of the figures for the ‘lawful migrants’ from these countries who were Muslims.
In fact, it is a matter of Government policy to give visas to persons from any country. It is only when a valid document for travel is not granted by India that persons are forced to ‘illegally’ migrate (undocumented migration).
As mentioned above, amendments to the Passport (Entry into India) Rules 1950 and the Foreigners Order, 1948 in 2015 have provided ease of entry and stay into India for only the persons exempted by the CAA to the exclusion of Muslims.
It is also important to note that even the members of the six communities which have been exempted by the CAA can also enter India lawfully (provided they are granted visas) upon issuance of a Long Term Visa (LTV). The LTV is issued for 5 years for any member of the six communities from any of the three countries. These persons can even rent homes, open bank accounts, and gain employment. These persons (who are not unlawful) then have to live in India for 11 years before they can apply for citizenship through naturalization.
However, while these lawful migrants are required to wait for this 11 year period, there is no justification or logic why ‘illegal’ (undocumented) migrants now have to wait only for a period of five years.
The reasons why the CAA, therefore, makes such exclusions and changes are therefore absolutely arbitrary and appear to have no nexus with the purpose for which they have allegedly been enacted.
9. Whom does CAA apply to?
AS PER PIB: It is relevant only for Hindu, Sikh, Jain, Buddhist, Parsi and Christian foreigners who have migrated fled from Pakistan, Bangladesh, and Afghanistan into India up to 31.12.2014 on account of persecution faced by them due to their religion. It does not apply to any other foreigners including Muslims migrating to India from any country including these three countries.
FACT: CAA directly applies to these persons mentioned in the PIB response but it indirectly applies to ALL MUSLIMS in India who are unable to prove their Citizenship (irrespective of them being Indian Citizens or not due to documentary issues) since they will not get the benefits which these other communities shall get post the NRIC and, as such, are excluded from the benefit of the CAA.
Again, the process for the NRIC has begun. Therefore, it is impossible not to connect the CAA with the NRC since both shall be relevant for persons claiming Citizenship.
About the Expert:
Azmat H. Amanullah is an Advocate-on-Record of the Supreme Court of India and is also associated with a law firm based out of New Delhi.
He has experience in a wide range of laws including the Insolvency and Bankruptcy Code, 2016, telecommunication and broadcasting laws, IP laws (primarily copyright laws), consumer protection laws, criminal laws, service laws and the like having handled civil and criminal matters at the trial, as well as Appellate stages, for both corporate and individual clients.
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