Dr. K. L. Bhatia
CAA has been enacted with a sole objective “citizen thou shall be with honour in your own country”. Therefore, recalling Shakespeare, “we must not make a scarecrow of the law, setting it up to fear the birds of prey, and let it keep one shape, till custom make it, their perch, and not their terror”.
Indian Constitution vide Articles 5-11 and Indian Citizenship Act, 1955 as amended by 2019 CAA enjoin who shall be and who shall not be deemed to be citizen of India, and as such have received far more thought and consideration by the founding authors because of the difficulties that have had arisen from three factors. One was the partition of the country and the people who were the victims in some way or the other of the partition. The other was the presence of a large number of Indians abroad, and it was desirable to decide about these Indians whether they should be considered as Indian citizens or not. Third, the presence of a large number of persons not born in India as persons of Indian origin but residing in India for innumerable years whether such persons should be considered as Indian citizens or not.
Articles 5-10 of the Constitution of India refer to Indian citizenship of Indian origin on the date of the adoption and enactment of the Constitution of India (26th day of November, 1949) and the commencement of the Constitution of India (26th day of January, 1950), namely, the citizens have been classified into three categories: (i) citizens by domicile, which needs to be examined in relation to residence, place of birth and nationality; (ii) citizens by migration, immigrants or émigré or refugee or migrant or settler from Pakistan; and (iii) citizens by registration. These provisions do not lay down a permanent law of citizenship for India. The business of laying down a permanent law of Indian citizenship has been entrusted to Parliament of India under the constitutional language of Article 11 and by virtue of powers vested to the Parliament vide the enumerated Entry No. 17 in the Union List of Schedule VII, the Parliament has enacted Indian Citizenship Act, 1955, which provides for different ways for acquiring Indian citizenship, viz., birth; descent; registration; naturalization; and incorporation of some territory into India; this Act also provides ways and means for cessation of citizenship; deprivation of citizenship; and expulsion of a foreigner.
Though man, by nature, is migratory animal, but, nevertheless, ‘there is no greater sorrow on earth than the loss of one’s native land’. The loss of one’s native land may happen due to multifarious unforeseen dimensions, but its cumulative effect is designating the affected persons as migrants, immigrants, refugees, asylum seekers. The object of law, international law and municipal laws is to save such persons from the status of ‘Stateless persons’. The melancholic aspects of problems related to refugees are that they are the victims of ‘conspiracy thou art hatched in secrecy and executed in darkness’ because of political strife or persecution policies of geo-theological states. And, such uprooted persons are required to be provided relief, rehabilitation, and relocation under the ‘Citizenship by migration’. It is the prerogative of every Nation State to grant or refuse to grant asylum or citizenship. So is the prerogative as well as privilege of the Indian State under the process and sanction of the Constitution of India. Therefore, the Indian Citizenship Act, 1955 takes care of such migrants or refugees not as beast of burden but as a duty of civilized Nation State under the canons of law.
The Citizenship Act, 1955 regulates the acquisition and determination of citizenship after the commencement of the Constitution of India. It provides for citizenship by birth, descent, registration, naturalization and by incorporation of territory. In addition, it provides for renunciation and termination of citizenship under certain circumstances. It also contains provisions regarding registration of Overseas Citizens of India and their rights. An Overseas Citizen of India is entitled to some benefits such as multiple entries, multipurpose lifelong visa to visit India. The Act also provides that any person who is/has been a citizen of Pakistan or Bangladesh or any other country which is notified by the Central Government will be ineligible to apply for Overseas Citizenship of India. The Act extends this provision to cover persons whose parents/grand- parents/great- grand- parents were citizens of any of the above countries. The Act also introduces a new provision which allows the Central Government to register a person as an Overseas Citizen of India cardholder even if she does not satisfy any of the listed qualifications. This is permissible if special circumstances exist.
Currently, the Central Government provides for two schemes for Indian origin persons, and their families, the Persons of Indian Origin card and the Overseas Citizens of India card. Persons of Indian Origin enjoy fewer benefits than Overseas Citizens of India. For Citizens of India are provided a lifelong visa. The Act provides that the Central Government may notify that Persons of Indian Origin cardholders shall be considered to be Overseas Citizens of India cardholders from a specified date. The Act extends this provision to cover spouses of overseas citizen of Indian cardholders. The Act also allows the Central Government to cancel the Overseas Citizenship of India card where it is obtained by the spouse of an Indian citizen or Overseas Citizen of India cardholder, if (i) the marriage is dissolved by a court, or (ii) the spouse enters into another marriage even while the first marriage has not been dissolved.
It discerns that the amendment was introduced with the objective of bringing equality in the provisions of cardholders of Persons of Indian Origin (PIO) and Overseas Citizen of India Cards (OCI) abroad. The amendment has been introduced to merge the both PIO and OCI schemes, viz., PIO cardholders shall be considered to be OCI cardholders from specified date to be notified by the Central Government.
UNHCR identifies refugees who have been longing to belong. Empathy for refugees runs deep in India. The scorching history of persecuted Zoroastrians is testimony; the turmoil of partition of Indian continent caused one of the largest mass movements in recent human history with more than 14 million people fleeing their ancestral homes and hearth with blood-tears who were protected, assisted, rehabilitated and integrated by the infant Indian Nation State.
India received roughly 10 million refugees who sought and found temporary refuge/shelter on its territory on humanitarian grounds during the Bangladesh Liberation War of 1971, and modern history is testimony that India successfully managed complex refugee situations with limited outside support. India has been grappled with the problem of Hindus who have had fled from geo-theological Bangladesh state. However, India has been facing the acute problems of Rohiyangs.
Refugees mostly Hindus, Sikhs from Afghanistan came, fleeing war, terrorism atrocities and persecution of geo-theological state actor, looking for peace. Kabulliwala is a poignant depiction.
Refugees mostly Hindus, Sikhs, Parsi, Christians, Buddhists, Jain victims of persecution of geo-theological state Pakistan; India has chosen the way of compassion towards the flow of this tide of human misery.
In order to meet the human miseries of such persecuted persons, the Government of India through parliamentary process inserted proviso to section 2 of the Citizenship Act, 1955 by 12th December, 2019 (CAA): “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 31 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 thereunder, shall not be treated as illegal migrant for the purposes of this Act”. The CAA 2019 further added section 6B to the Citizenship Act, 1955: “The Central Government or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in that behalf, grant a certificate of registration or certificate of naturalization to a person referred to in the proviso to section 2”.
With such a pedigree, the CAA hands down a process to grant citizenship and it no where mentions about the deprivation or taking away of citizenship of Indian citizens of Indian origin. Conferment or deprivation of citizenship is a matter within the domain of Parliament of India and extends to whole of India and as such State legislatures have no jurisdiction to pass any resolution opposing the implementation of CAA in their respective State(s). The federal States of Indian Union are to work within the norms of cooperative federalism based on mutually friendly reciprocal to each other and not antagonizing or opposed to each other or distant from each other. The stand taken by some States passing resolutions against the CAA shall be revolt against the sovereignty of the Constitution of India.
The CAA was passed by majority in both the Houses of Parliament. Those who were opposed to it expressed their dissent on the floor of the Houses of Parliament as per their political will. Any opposition to a Bill or enacted law of the Parliament can be challenged in the Supreme Court of India to seeking complete justice and that seems a decent way of expressing dissent. Dissent is life blood of democracy but it must be expressed in respectable decent manner. Several writs have been presented in the Supreme Court as to the constitutionality of CAA which has yet to be determined by the Apex Court on the genesis of flashing the flaming sword of its inspiration under Articles 13 (law against the canons of constitution of India shall be void ab initio), 14 (State denies equality before the law and equal protection of the laws), 15 (law creates discrimination), 16 (law shall create discrimination in public employment), 19 (law shall be unreasonable because it shall deprive the citizens of their freedoms), 21 (law shall deprive citizens of their right to life, dignity and personal liberty because it shall be against the due process of law). The opposition to CAA should have been expressed in a dignified way, but the way the disagreement, resistance, antagonism, and hostility to it has been expressed is not abhivayakti of freedom of speech and expression but an unfriendly as well as uncivilized way of opposition, which shows demonstrations under the seize of conspiracy wrapped in mystery inside an enigma.
(The author is former Dean Faculty of Law and founder Director The Law School University of Jammu)
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