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Mainstream, VOL LIV No 42 New Delhi October 8, 2016

A Bill sans Will and Wit

Sunday 9 October 2016

by Joydeep Biswas

The Citizenship (Amendment Bill), 2016, now before the Joint Committee of the two Houses for a thorough examination, contrary to popular perception, does not guarantee citizenship to the religious minorities from Pakistan, Afghanistan and Bangladesh. It only seeks to convert the ‘illegal migrants’ to ‘legal migrants’.

The Union Home Minister introduced the Citizenship (Amendment) Bill, 2016 in the Lok Sabha during the recently concluded monsoon session further to amend the Citizenship Act, 1955. The Bill, sent through a floor consensus to the thirty-member Joint Committee of Houses (JPC) on August 11 for a ‘thorough examination’ with one-third of its members drawn from the Upper House, contains proposals for bringing in changes to sections 2 and 7, and the Third Schedule of the principal Act.

The Bill, inter alia, states that the persons belonging to the minority communities in Pakistan, Afghanistan and Bangladesh, such as, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who entered India with or without valid documents, would now onwards cease to be treated as ‘illegal migrants’, and, thereby, would be made eligible to apply for Indian citizenship under the provision of naturalisation under Section 6 of the principal Act. In a strict legal interpretation, this proposed piece of legislation is more of a nature of a technical tweaking of the statute book when the vexed issue at hand calls for the exercise of sheer political wisdom rather than mere bureaucratic wrangling.

In the run-up to bringing the Bill in Parliament, the Union Government had issued two orders on September 7 last year. The Foreigners (Amendment) Order, 2015 and the Passport (Entry into India) Amendment Rules, 2015 were issued by the Ministry of Home Affairs to regularise the stay of the same section of the people in India by incorporating suitable amendments in the principal rules, namely, the Foreigners Order, 1948 and the Passport (Entry into India) Rules, 1950. Unlike in this Bill the twin orders of the Central Government contain an arbitrarily chosen cut-off date, December 31, 2014. The Home Ministry’s notifications also mention that the religious minorities from Pakistan, Afghanistan and Bangladesh, who had arrived at India prior to this date for religious persecution or the fear of it, would be allowed to stay back in India. But, surprisingly enough, those administrative orders were not followed up with the required legislative intervention meaning thereby that the corresponding Acts, namely, the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 have not been amended in tandem to lend teeth to the Home Ministry-level orders.

Infructuous

Even as the Bill covers the whole of India— acquisition and determination of citizenship being a Union subject—its implication is expected to be far more pronounced in Assam than in any other part of the country. Migration from erstwhile East Pakistan (now Bangladesh) and its consequent impact on the society and polity of this North-Eastern State has produced a wide ranging fall-out—from the xenophobic anti-foreigners movement to racial profiling of citizenship to identity-based electoral config-uration.

With more than 1.5 lakh Doubtful Voters on the electoral rolls thanks to an unheard of and dubious directive from the Election Commission of India applicable only in this State, and over one thousand five hundred migrants languishing in six detention camps, Assam exhibits a perfect case-study wherein the rationale behind the Centre’s move towards citizenship legislation could be best examined. The precursor to the Bill, the twin orders from the Home Ministry, have so far appeared to be infructuous as neither the State Police nor the judiciary is ready to take cognisance of these administrative orders while dealing with the cases of detection, detention and deportation of the suspected foreigners. The logic behind the administrative orders turning out to be toothless is that the amended provisions are clearly at odds with the principal Acts which have been left unchanged. The net result that follows is that none of the migrants—for whom such orders were promulgated—have got any relief from the two orders.

With these orders proving to be inconse-quential, the next round of expectation of the partition-victim migrants in Assam was the Bill which the BJP had included in its poll promises during the campaigns ahead of the Lok Sabha hustings of 2014 and also the Assembly elections in Assam this year. In fact, the Prime Minister, Narendra Modi, had made personal commitments that once in power his government would provide citizenship to the Bengali Hindu migrants from Bangladesh. The Bill, therefore, its all-India coverage notwith-standing, is practically meant to serve the interests of the Bengali Hindu migrants of Assam who have been steadily with the BJP for the last two decades if we go by the electoral arithmetic of the State.

Contradictions

But even a cursory reading of this Bill tells us that the proposed amended provisions of the Citizenship Act, 1955 are sure to clash with some other Sections of the principal Act, thereby reducing the whole legislative exercise to an attenuated status. While Section 3 of the Citizenship Act covers the acquisition of citizenship by birth for the rest of the country, Section 6 A therein, incorporated by an amendment in 1985, is meant for providing special provisions for citizenship in Assam covered under the Assam Accord. According to this 6 A of the Citizenship Act, read with the provisions in the Schedule under Section 4A (4) of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, any person who crossed over to the Indian territory after March 25, 1971 shall be treated as an illegal migrant. Naturally, such a case of illegal migration would attract the relevant provisions of the Foreigners Act, 1946 and the Foreigners Tribunal Order, 1964.

At present there are one hundred Foreigners Tribunals operating in Assam where more than two lakhs of cases are pending. The Bill practically proposes to enable the post-1971 stream of migrants apply for Indian citizenship via the route of naturalisation. In order that these people can apply for citizenship under Section 6, they are proposed to be decriminalised by lifting the prefix ‘illegal’ before the word, ‘migrants’. While this is indeed an affirmative action towards granting citizenship to this hapless section of migrants, who had to flee their homeland for no fault of theirs, mere easing of the mandatory waiting period of 11 years to six years in the Third Schedule in no way guarantees citizenship to them. The Bill, even if enacted, shall remain as just a piece of enabling legislation. The future governments may very well take shelter under Section 14 of the Citizenship Act in refusing what the present government is seemingly granting—the much coveted citizenship.

One more area of legal contention is the ongoing process of preparation of the National Register of Citizens only for the State of Assam. The arrangement, initiated by a notification of the Registrar General of India (Citizens’ Registration) on December 6, 2013, and carried forward under the direct monitoring of the Bench comprising Justice Ranjan Gogoi and Justice Rohinton Fali Nariman of the Supreme Court, is expected to come up with the first set of numbers of the actual foreigners in Assam. The moot point in this context is that the cut-off date being used for determination of who would qualify for enrolment in the updated NRC, and who not is also given by that 6 A of the Citizenship Act. This effectively implies that the legal sustainability of the new amendment Bill is still open to close scrutiny.

Brief for JPC

As the Joint Committee of Houses takes up the brief of examining the merit of the Bill, the members therein need to take a hard look at not only the legal nuances, enumerated above, but, more importantly, the political niceties or otherwise of this newly devised communal binary in the matter of awarding of citizenship as well. Within the structure of a secular jurisprudence and an inclusive Constitution, India certainly can ill-afford to offer naturalised citizenship on the basis of the religious identity of migrants. The political compulsion of the BJP under the Sangh Parivar’s tutelage has been understandably at work in drawing the fine lines of this Bill. It is one thing to make historical amends by granting citizenship to a section of migrants who were wrongly knifed out through the Radcliffe Line, but it is altogether a different plan to turn India into an Israel for the persecuted Hindus all over the world.

The Bill also needs to be read in conjunction with the nitty-gritty aspects of the process of preparation of the National Register of Citizens presently underway only in the State of Assam. As referred to earlier in this discussion, the NRC update process, once completed with the publication of the final list, will bring on table the exact number of ‘foreigners’ or ‘illegal migrants’ dwelling on the soil of Assam. Till such time, it effectively means that the Central Government shall remain clueless as to the real cardinal number of the expected beneficiaries from the provisions of the Bill in question. This, to say the least, exposes the government to a complete lack of wit. As per the data released to the press by the NRC authority in Assam, a total of 68.13 lakh families have submitted applications for inclusion of names on the NRC. Based on the population size of the State obtained from the 2011 census figures, arithmetic tells us that 104 per cent of the population have come under the NRC net. And there’s no surprise that all such have claimed to be Indian citizens, albeit by self-declaration. A tricky question then surfaces—whose Bill is it anyway? To get that answer, as has been argued earlier, one has to wait till the NRC authority comes up with a flawless register of Indian citizens residing in Assam with March 25, 1971 being taken as the reference time-line. Once this screening is over, and with the full knowledge of the quantum of post-1971 stream of illegal migrants, can the government do its brainstorming on their fate. After all, the dimension of a problem dictates the policy on it! The Bill in that sense is slightly premature.

If the BJP is indeed very sincere in finding a permanent solution to the question of citizenship for the Bengali migrants in Assam, the only option open is to scrap the special provision enumerated under Section 6A of the Citizenship Act, 1955. This section appears problematic to both the accused and the accusers in Assam. The Bengali in Assam finds that her right to citizenship by birth under Section 3 of the Citizenship Act is notoriously narrowed by the provisions in 6 A. The Assamese nationalists have reservation against this very section from an opposite angle. They maintain that this unique feature in the Citizenship Act has actually disproportionately expanded the connotation of Section 5 to offer deemed citizenship to the post-1951 migrants from across the eastern border of the country. In a significant judgment of the Supreme Court (JJ, R. Gogoi, R.F. Nariman), dated December 17, 2014, while disposing the writ petitions challenging the constitutionality of Section 6 A of the Citizenship Act, the honourable judges considered it a ‘substantial question as to the interpretation of the Constitution’ which, they observed, should be ‘decided by a minimum of five Judges under Article 145(3)’. After all, in a dispensation of ‘sabka saath, sabka vikas’, India badly needs uniform citizenship provisions throughout the country. The JPC should propose jettisoning this special provision for Assam, and keep the remaining sections of the Citizenship Act unchanged. Only then the Bill can deliver to those for whom it was primarily purported.

Joydeep Biswas, an Associate Professor of Economics at Cachar College, Silchar, is a scholar with the Department of Political Science, Assam University. He can be contacted at e-mail: joydbiswas[at]gmail.com