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Tue, 07 Apr 2020

Northeast Today

Citizenship (Amendment) Act , 2019 Myth, Reality and Fear

Citizenship (Amendment) Act , 2019 Myth, Reality and Fear
February 06
14:26 2020

Kishor Kumar Kalita

Eventually the eminent domain has enacted the Citizenship (Amendment) Act, 2019 ignoring the massive protest demonstrated all over the country and particularly from the people of North-East region and more specifically from the people of Brahmaputra Valley of Assam. Coining this act enacted by the Indian Parliament as a threat to the indigenous people, one of the leading intellect of this globe Noam Chomsky has commented- “I have been following these shocking and dangerous developments with deep concern. The Citizenship Amendment Act poses intolerable threats to indigenous people, along with many others, and should be strongly condemned by international opinion, which should also support the resistance to the attacks on secular democracy and fundamental human rights being carried out by the Modi Administration”.

The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019. It amended the Citizenship Act of 1955 by providing a path to Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities who migrated from Pakistan, Bangladesh and Afghanistan. By amending the principal act i.e. Citizenship Act, 1955, a proviso has been inserted in section 2, in sub-section (1), in clause (b), that provides as such-”Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made there under, shall not be treated as illegal migrant for the purposes of this Act.” Again to granting such citizenship, the BJP led Central Government has also reduced the time period of staying in India for those migrants who belong to above mentioned religious classes. The amendment has relaxed the residence requirement for naturalization of these migrants from eleven years to five and for facilitating such time relaxation another proviso to the clause (d) of Third Schedule to the principal Act has also been inserted that read as-’Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.

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By this amending Act Muslims were totally been excluded and this Act has been considered as the first one of the legislative history of India where religion is overtly used as a criterion that directly violates the basic secular spirit of the Indian Constitution. The Hindu nationalist Bharatiya Janata Party (BJP), which leads the Indian government, had promised in previous election manifestos to offer Indian citizenship to persecuted religious minorities from neighbouring countries. Under the 2019 amendment, migrants who had entered India by 31 December 2014, and had suffered “religious persecution or fear of religious persecution” in their country of origin were made eligible for citizenship. Most surprisingly such “religious persecution or fear of religious persecution ” has not been inscribed in the present amended Act, though the Government of India by means of executing rules and orders under Passport (Entry into India) rules, 1950 and Foreigners Order, 1948 respectively initiated the process of giving a particular privilege to those people four years before, who belong to those religion and countries, that have been mentioned in the above stated section 2(1)(b) of the Citizenship Act 1955. The Government of India has amended the Passport (Entry into India) Rules, 1950 and the Foreigners’ Order 1948 through a notification on September 7, 2015 by exempting persons belonging to minority community in Bangladesh ,Pakistan or Afghanistan who have been compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before December 31.

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By the Passport (Entry into India) Amendment Rules, 2015 a particular clause was inserted in rule 4(I) (h) in the Passport (Entry into India) Rules, 1950 that read as-”… 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 31st 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: Provided that provision of this clause shall take effect from the date of publication of this notification in the Official Gazette.”

The section 3(2) (c) of the Passport (Entry into India) Act, 1920 has mentioned about those foreigner individuals or class of person may be exempted from any legal action by the Indian Government if they entered into India without valid documents including passport or other travel documents; or with valid documents including passport or other travel document and the validity of any of such documents has expired. Under this provision the Government of India surreptitiously made the above amendment in 2015 and initiated the way to provide citizenship to those classes of people who are already exempted from any legal action under section 3 the Passport (Entry into India) Rules, 1950.Similary the Foreigners (Amendment) Order, 2015 that has also been published in the same notification of 7th September, 2015 where a new paragraph had been inserted. This new section ‘3A’ read as such –“Exemption of certain class of foreigners.- (I) 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 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.”

Consequences and Apprehension:
Though many legal and intellectual luminaries has already portrayed the C(A)A as unconstitutional Act that directly contradicts the secular spirit of this country, but the real apprehension and anxiety that may pose by this act to the North Eastern People and particularly to the people of Assam in near future will be more disastrous and unparallel. Alike the indigenous people of Tripura, the indigenous people of the state have been under an enduring fear and anxiety which has been lasting in this frontier part right from the colonial era. These local people think that in coming days these migrated people will outnumber the local people and they will be reduced to minority within their homeland’s .As a result of such minorization the local language and culture will no longer exist with dignity and the fate of whole civilization of the Brahmaputra Valley will go to the hand of those people who have been migrating to this valley because of both pre and post colonisation.

How the fear of illegal migration has resulted unprecedented socio-cultural as well as eco- political damages to the people Assam could rightly be understood by the observation made by the Honourable Supreme Court in Sarbananda Sonowal vs Union Of India & Anr case dated 12 July, 2005.In this case the division bench observed – “This being the situation there can be no manner of doubt that the State of Assam is facing “external aggression and internal disturbance” on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.” The judgement also quoted the statement made by Dr. Nagendra Singh, India’s representative in the Sixth Committee of the General Assembly on the Definition of Aggression, wherein he said :- “… [T]he first consideration, in the view of the Indian Delegation, is that aggression must be comprehensively defined. Though precision may be the first virtue of a good definition, we would not like to sacrifice the requirement of a comprehensive definition of aggression at any cost. There are many reasons for holding this view. Aggression can be of several kinds such as direct or indirect, armed in nature or even without the use of any arms whatsoever. There can be even direct aggression without arms…..For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence, I am afraid, Mr. Chairman, it would have to be categorized as aggression. In such a case, there may not be use of armed force across the frontier since the use of force may be totally confined within one’s territorial boundary, but if this results in inundating the neighbouring State by millions of fleeing citizens of the offending State, there could be an aggression of a worst order……. What I wish to convey, Mr. Chairman, is the complexity of the problem which does not permit of a four- line definition of aggression much less an ad-interim declaration on it.”

Eventually considering the magnitude  of  migration   to the state of Assam the matter was taken up by the Hon’ble Supreme Court of India’ and made an order while judging two writ petitions by Assam Public Works and Assam Sanmilita   Mahasangha   & Ors. Hon’ble  Supreme  Court in 2013, headed by  the  bench of Justice Ranjan Gogoi and Justice Rohintan Fali Nariman, directed the Union Government and the State Government to complete the update of NRC, to be implemented in adherence to Citizenship Act, 1955 and The Citizenship  Rules,  2003, in all parts of Assam with the objective to rule out immigrants from the state. Pursuant to the directive of the Hon’ble Court, the Registrar General of India via its notification Number S.O. 3591 E dated 6 December 2013 notified commencing of NRC. That was the beginning of the gigantic   task    identification  of illegal migrants and the Supreme Court thereupon took on the task of monitoring the entire process of NRC update in Assam. It was a great fortune of the state that this order had been whole heartedly accepted by the entire people of the state without asking any doubt on the proposed process.

But immediately after the publication of final NRC, the spokesperson of the Assam Government publicly made announcement that the state government would not accept the NRC in its present form without doing a reverification in certain districts of the state the

.The State government before the publication of the NRC assumed that a huge proportionate number of Muslim people would be excluded from the National Registration  of  Citizenship and  such  would  help  them   to establish the fact that the numbers of Hindus are reducing in the state due to illegal Muslim aggression from the neighbouring state. Therefore, BJP and other Hindutva force are arguing relentlessly for granting citizenship to those Hindu refugees who have been continuously migrating and settling in Assam and other parts of the country from Bangladesh, Pakistan and Afghanistan. If these refugees would get Indian citizenship,  as argued by the BJP, then only the Hindu people of the state of Assam would be able to deter and protect the state from Muslim aggression. This is the simply theoretical narratives propagated by the Hindutva forces by which they are trying to convince the common masses of this country to support the C(A) A.

The Fate of Assam Accord

The  Assam  Accord  was a Memorandum of Settlement (MoS) signed between  representatives   of  the   Government   of   India and the leaders of the Assam Movement.The signing parties to this agreement unanimously accepted all migrants who had entered into Assam prior to January 1 1966. Further, this accord signed in 1985 finalised the 25th March 1971 as cut of date to identify and deport all illegal migrants irrespective of their caste, creed or religion. The accord is also  considered to be a legitimize instrument from which a number of legislative and administrative promises are emanated. A series of judicial and administrative measures now are in  progress as a result of implementation of Assam Accord out of which the identification and expulsion of foreigners may be considered  as the prime  one.  Moreover the above mentioned National Register of Citizenship is also an outcome of this accord which has been demanded by the people for the sake of mitigating the decadal disturbances cantering on the citizenship. But enacting this Act, the Government of India has directly negated the promises that are inscribed in the Assam Accord,   more    particularly the cut of date to identify and deport the illegal migrants. As this Act will grant citizenship to those migrants who may have entered into India right to the 31st December, 2014,  the  cut off date of 1971 25th March as promised in the Assam Accord will have no consequences at all. Therefore, local communities of the state have a trepidation that the C (A) A has been enacted to jeopardize the implementation of Assam Accord and it is a process by which the local people of the state will become an insignificant portion of the total population, where socio- political domination  will go  to the hand of the outsiders, particularly in the hand of Bengali speaking community.

 

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