CITIZENSHIP
AMENDMENT ACT AND ITS CONSEQUENCES
PART III
VI.
WHY THIS AMENDMENT?
20.
The most burning questions right now are, “what
was the reason to bring about this amendment? Why was it brought about?”.
21.
The most popular answer that is doing the rounds
is that the present government is anti Muslim and thus doing everything in its
power to oppress the “minorities” in this country. Let us try to understand the
reasons behind bringing this amendment and what compelled or inspired the
Central Government to bring about this amendment. The said reasons are very
much within the public domain. However, a large section of the society has
either turned a blind eye to the same or is simply ignorant about the events
that transpired.
22.
From the time of partition and division of India
into Pakistan and later the creation of Bangladesh in 1971, several problems
were faced by those Indians that were residing in places that share the border
with Pakistan or Bangladesh, and the aftermath of the same persists even to
this day in those areas. The infiltration of Bangladeshis into India is a well
known issue which has been prevalent right from the date of birth of Bangladesh[1].
The border states were and still are the worst hit due to this infiltration and
it has wreaked havoc on the economy, culture and general well being of the
native people of the states that are situated next to Bangladesh, i.e., the
North Eastern Indian States, more specifically, Assam.
23.
The location of these states has made them
vulnerable to the mammoth issue of infiltration of Bangladeshi nationals. Assam
is bestowed with rich natural resources and forests which makes it a great
resource for a country that owns it. However, During the creation of
Bangladesh, Assam was not given to Bangladesh, which left the new nation
disgruntled.
24.
Further, the economy of Bangladesh has been poor
from its birth and has failed to improve despite nearly fifty years since its
formation. The rampant unemployment and the poor standard of living drove the
citizens of Bangladesh to seek respectable lives elsewhere. Thus, they started
migrating to India in search of employment and better standard of living. As
explained above, due to its proximity to the North Eastern Indian states, India
became the sought after destination. Lakhs and lakhs of Bangladeshis migrated
to India. However, the problem was that they did not seek permission from the
Indian Government to enter the Indian territory. They entered illegally and
settled in the North Eastern states. Further, due to the common ethnicity that
Bangladeshis share with the North Eastern Indians, it was fairly easy for them
to settle in these states without drawing any attention. The issue of
infiltration soon became a huge issue as it disrupted the lives of the citizens
of India in the North Eastern Indian states. The Bangladeshis, after
infiltrating to Assam and the neighbouring states even got themselves
registered as voters and purchased properties. The new found economic power of
these Bangladeshis posing as Indian citizens started having adverse effects on
the day to day lives of the real citizens of India in Assam and other states.
25.
Further, the Muslim population in Assam grew
exponentially when compared with rest of India. Between 1971 & 1991 in
Assam, the Muslim Population grew from 30.99% to 77.42%, whereas the Hindu
population increased from 37.18% to 41.89% during the said period[2].
Thus, it was obvious that the Muslim population in Assam grew at such a fast
pace not due to births, but due to infiltration.
26.
The above facts were reported by the Governor of
Assam[3]
in his report[4]
which was referred to in the landmark case of Sarbhananda Sonowal Vs. Union of
India[5]
(henceforth referred to as “Sonowal I”). Their population rose so
exponentially that the native Assamese were reduced to a minority in their own
state. Similar was the situation in the neighbouring states of Assam. The
culture, language, employment and general well being of the native people was
in grave danger and the same caused a pressing problem to the native Assamese,
which resulted in protests that turned violent resulting in deaths of several
activists that fought for the rights of Assamese. Therefore, in order to check
the menace of infiltration, the then Government led by Smt. Indira Gandhi,
passed the controversial Illegal Migrants (Determination by Tribunal) Act, 1983
(hereinafter referred to as the “IMDT Act”). The object of this
Act, as the title itself suggests, was to detect the Illegal Migrants that had
infiltrated to Assam and conducting trial and deporting people that were
declared as Illegal Migrants by the Tribunals constituted under the IMDT Act.
27.
It is relevant to mention here that, at that
time, Tribunals were already established under the Foreigners (Tribunals)
Order, 1964 (“1964 Order”), in India, to try exclusively the
cases of people whose citizenship was dubious. Despite the same, the IMDT Act
was enacted and made applicable only to the State of Assam. Thus, cases of citizenship
that arose in Assam were to be referred only to the Tribunals established under
the IMDT Act and not to Foreigners Tribunal.
28.
Further, in 1985, as the problems caused by the
Illegal Migrants continued to persist, the same was reported to the Central
Government and after much deliberation, the then Government led by Sri. Rajiv
Gandhi entered into the Assam Accord, 1985 with the leaders of Assam movement.
The Assam Accord strove to protect the rights of the Assamese by promising to
take several measures to check the issue of infiltration and detection &
deportation of Bangladeshi nationals. Several measures such as fencing the
borders that the Indian states shared with Bangladesh; maintaining a register
of births and deaths of citizens; issuance of citizenship certificate only by
the Central Government, after due verification of the citizenship of the people
etc. It was also provided in the said Accord that a committee would be formed
that would comprise Assamese, to deliberate over the aforementioned measures
and to implement the same. The signing of Assam Accord, 1985 made the Assamese
heave a collective sigh of relief, as they believed that the same would put an
end to their ordeal, but much to their dismay, nothing came through, as the
Committee was never formed! The Committee was finally formed only very recently
after the Modi Government came to power. Thus, for nearly thirty (30) years,
the Assam Accord remained only on paper and nothing materialised.
29.
Coming back to the IMDT Act, the people of Assam
soon realised that the IMDT Act was a bane disguised as a boon. Under the IMDT
Act, the Complainant (State Government) had to prove that the suspected person
was not a citizen of India. Ideally, it would be easier to direct the suspected
person to produce his credentials to prove his citizenship rather than
expecting the State Government to prove that the person is not a citizen of
India. This is just an example. Several such needless and meaningless and
harmful procedures were prescribed which only caused more delay in detection
and declaration of persons as illegal migrants. As per the report submitted by
the Assam State Government in 2005, the number of cases registered under the
IMDT Act up to the year 2000 were 3,86,249. However, the number of cases where
the persons reported were declared as illegal migrants was a shockingly small
number of 11,636. It is hereby clarified that the cases were not disposed off
after holding a full trial. They were dismissed on the ground of mere technicalities.
30.
Also, under the IMDT Act, any individual could
report about an illegal Migrant. However, if the case against the alleged
Illegal Migrant was dismissed, then the individual that lodged the complaint
would be penalised! Due to this, many citizens, although they knew that their
neighbours were Illegal Migrants, stayed mum due to the fear of being
penalised. Thus, the IMDT Act generated fear and not relief in the minds of
Assamese. Although the State Government detected the illegal migrants, due to
the draconian provisions of the IMDT Act, the said people were let scot free.
Instead of protecting the interests of the citizens of India, the IMDT Act
protected the interests of Illegal Migrants, which is ultra vires the
constitution. Therefore, the Hon’ble Supreme Court struck down the
controversial IMDT Act in Sonowal I judgment and directed that the cases that
were pending before the IMDT Tribunals shall stand transferred to Foreigners
Tribunals and the authorities were given permission to initiate fresh action
against suspected persons, who cases were dismissed on grounds of technicality.
31.
The Central Government, thereafter, amended the
1964 Order and passed the Foreigners (Tribunals for Assam) Order, 2006, popularly
known as the 2006 Order, feigning to comply with the directions issued under
the Sonowal I case. The said amendment was also made applicable only to the
State of Assam. However, again, the 2006 Order was counter productive, as it was
basically a twin of IMDT Act. Aggrieved by the same, in 2006, the Petitioner
Mr. Sarbhananda Sonowal again knocked the doors of Supreme Court. After hearing
both parties, the Supreme Court on 05.12.2006 while allowing the petition[6]
came down heavily upon the Central Government and condemned its act, rather the
omission, to comply with its directions. The Supreme Court further remarked
that the Central Government[7]
failed to comply with these directions as it lacked the will.
32.
It is not hard to understand as to why the UPA
government refrained from taking any definitive action against the Illegal
Migrants. The Illegal Migrants were a strong vote bank to the UPA government[8].
Thus, nothing mattered more than votes, even if it was at the cost of lives and
well being of citizens of India. Thus, the Supreme Court allowed the Petition
and quashed the 2006 order and directed the Central Government again to comply
with the directions issued by it in Sonowal I.
33.
This was the scenario in Assam, that was caused
by the Bangladeshis. However, the question still persists that, if the
infiltration has been causing so much problem, why is the Government granting
citizenship to the very same people? It is relevant to note the difference
between two terms, viz., an Illegal Migrant and a Refugee. An Illegal Migrant
is a person who intentionally migrates to another country in search of a job or
job prospects, however, without the permission of the country that he is
entering. Thus, the reason for his migration is mainly monetary. However, a
Refugee is a person who is forced to leave his country due to war, natural
disaster or persecution or fear of persecution faced by him on religious
grounds and fearing for his and his family’s safety, he leaves his country and
seeks refuge in another country. The present Amendment to the Citizenship Act,
seeks to grant citizenship to “Refugees” as they were driven out of their
country through persecution.
34.
Pakistan, Afghanistan and Bangladesh have
declared themselves to be “Islamic” states. Thus, it goes without saying that
the population majorly consists of Muslims. Thus the chances of persecution of
Muslims in an Islamic state is quite less. It is relevant to mention here that
several acts of violence were committed on the people belonging to other
religions such as Hindu, Sikh, Jain, Buddhist, Parsi and Christian.
35.
In Pakistan, Gurudwaras were destroyed. Churches
were destructed or bombed. Temples were destructed and many people belonging to
the aforesaid religions were simply killed. Hindu, Sikh and Christian girls are
routinely forcibly converted to Islam and are abducted and their whereabouts
are not known to their family members. The more recent incident of ex-Pakistani
cricketer Danish Kaneria, opening up about the discrimination he faced in the
team, due to his religion, show that the issue of discrimination and
persecution in Pakistan, is real.
36.
In Afghanistan, the condition of Non Muslims was
deplorable. During the reign of Taliban, women were made to wear Burqas
whenever they stepped out of the house, even though they did not practise
Islam. However, non muslim women had to wear burqas of a different colour so
that it was easier for others to know that they were not Muslims and could
maintain distance from them. Each non Muslim house had to hoist a yellow cloth
on their house to signify that the members of that house were not Muslims. Non
Muslim girls between the ages of 8 and 17 were publicly raped as recently as in
2001. Many Buddha Statues and stupas were destroyed. Two Buddha statues which
were built during the Pre-Islamic era were also destroyed despite appeals being
made not to destroy them, by United Nations Organisation and many Islamic
countries.
37.
As far as Bangladesh is concerned, there were
mass killings and rapes of those that did not practise Islam. As recently as in
2019, eight (8) house belonging to Non Muslims were set on fire. Several
Temples and statues were vandalised. This has been the situation of people
belonging to religions other than Islam in these three countries. Unable to
lead respectable and normal lives, and further, fearing their lives, these
people were forced to leave their countries and seek refuge in India. However,
due to the fact that they were not citizens of India, they were unable to get
jobs, unable to provide education to their children, unable to own a house and
many other things such as this that made their lives miserable. They could not
go back to their countries nor could they live dignified lives here. Thus, to
put an end to their ordeal and for the untold miseries that they were suffering
due to no fault of their own, the present Government thought it fit to bring
about this amendment. By granting citizenship to these innocent persecuted
people, the Government is merely granting them dignity and equal opportunity,
which is precisely what is promised under the Constitution of India.
38.
The allegation that the latest amendment to the
Citizenship Act, 1955, affects the lives of citizens of India, more
particularly, that of Indian Muslims is baseless and misconceived. The
Citizenship Act, 1955, does not regulate the lives of people after they become
citizens of India. The Citizenship Act comes into picture when a person has to
be registered as a citizen or when he wants to give up his Indian citizenship.
The period between that is not regulated by the Act. All the municipal laws
will apply to any person that becomes a citizen of India. Thus, the argument
that the Indian Muslims are in grave danger, or that their citizenship is in
danger, due to this amendment, is ludicrous. Any person that has taken the
effort to read the Citizenship (Amendment) Act will know that these allegations
are being made with the sole purpose of undermining the efforts taken by the
present government. If these protestors and activists are supporting the cause
of minorities, then they should be supporting the Citizenship Amendment Act!
Merely because the minorities in question right now are not Muslims, does not
make the Amendment anti Muslim. This amendment is about protecting the rights
of minorities of three neighbouring countries rather than causing harm to
anybody, much less those that are already the citizens of India, irrespective
of their religion.
39.
At the cost of repetition, it is again clarified
that there is no bar on Muslims of the said three countries from applying for
citizenship of India. They need to follow the same rules that were provided in
the Citizenship Act, 1955, i.e., they should have resided for a period of
eleven years in India before making an application and should not be illegal
migrants and such other conditions which have been explained in detail in the
previous parts of this article series.
40.
As regards the issue of National Register of
Citizens, more popularly known by its abbreviation, the NRC, the same is yet to
be introduced. The exercise of NRC, as of now is prevalent only in Assam and
there is a proposal to enforce it all over India. However, the opposition is
spreading baseless rumours about what NRC is and how it will be executed. Even
otherwise, for the sake of discussion, NRC is merely the exercise of keeping a
record of the births and deaths of citizens. In this way, the menace of Illegal
Migrants will be further reduced. An in-depth discussion can be had as and when
NRC is introduced.
I.
CONCLUSION:
41.
Thus, in my opinion, the Citizenship Amendment
Act, 2019, is constitutional and does not, in any way, affect the rights of
those that are already citizens, much less Indian Muslims. The amendment in
question is all about granting citizenship to a specific
class of people and not about stripping off anyone of
their citizenship.
42.
As a parting note, I would like to mention about
Article 44 of the Constitution, which reads, “State shall endeavour to provide for its
citizens a uniform civil code (UCC) throughout the territory of India”.
So, when the next momentous bill will be presented by this Government, we can
be rest assured that same will also be within the framework of the
Constitution!
JAI HIND
Vaishnavi
Naik
Advocate
Bangalore
[1]
26th March, 1971
[2]
As reported by the Directorate of Census, Government of India
[3]
Lt. General S.K. Sinha (Retd.), former Deputy Chief of Army Staff
[4]
Report dated 08.11.1998
[5]
2005(5)SCC655
[6]
Sarbhananda Sonowal Vs. Union of India reported in (2007) 1 SCC 174
[7]
UPA Government
[8]
Right from 1950 till now, except for fifteen years, that too, in scattered
periods, Indian National Congress has been in power (for nearly 55 years), in
Assam.
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