Citizenship Amendment Act – CITIZENS, ALIENS AND OTHERS

‘A thousand years scarce serve to form a State. An hour may lay it in dust. (Byron)

Citizens are members optimo jure, while aliens stand on lower level in the scale of legal rights. (Salmond).

The Amending Act of 2019, notified on 12.12.2019, has witnessed across the length and breadth of India varied reactions from all those treading Indian Territory, be it as citizens, aliens or others. There is apparently a politically spearheaded series of street protests, as it always happen in the context of street violence, euphemistically called ‘street protests’. As usual, the campuses of academia also registered their fuming and flaming presence, buttressed by the disguised voices and invisible ‘pats’, in the political bandwagon of the protestors. The street protests symbolize the tryst of jurisprudence with other social sciences in the context of conflict resolution mechanisms. In such trysts the jurisprudence and all that it symbolizes is always left stranded in the streets, mauled and marauded and literally in a bleeding condition. Street protests also indicate dilution and erosion of the sacrosanct principles which constitutes the foundation of each and every institution, which any civilized society evolves over a period of ‘thousand years’ for the well being and development of the society. The dilution and erosion of all principles of constitutionality and democracy threaten to lay the celebrated ‘Leviathan’ in dust in one hour. The more street protests turn violent and louder, the deeper the rot and rust that seeps in the foundations of the institutions that govern the society.

We are a numerically oversized democracy of multiple shades and multiple hues. The institutions which govern the life of an individual from cradle to grave, include our education system, operating through the crowded campuses of the Schools, Colleges and Universities. These institutions include the multi-coloured and overarching canopy of culture, holding within its folds multiple values and multiple mindsets, often moulded by unfiltered mediums of freshly-sprouted literature, off-the-shelf arts and ever-simmering politics. These institutions are predominantly controlled by our over-stressed judiciary, our nonchalant executive and our usually ‘numerically-disabled’ and ‘vote-bank over-conscious’ legislature. The resultant anarchy is celebrated, amidst the unbearable heavy weights of multiple interests, as ‘freedom’ under the well-orchestrated clout of political ideologues with deep pockets. Who are these string-holder ideologues, making their protégé  violently protest in the streets ? This existential question is seldom asked, much less answered. In such self-created anarchy due to numerically disabled parliaments, the meaty expression ‘freedom’  is used as a bait to trap the ‘fish’, most innocent segments of citizenry, for being roasted or fried as per political menus of these ideologues – socially and financially empowered clan of self-proclaimed intellectuals. Thus through the means and methods of street protests, the disguised predators and pirates of ‘power grubs’ in the political jungles of oversized democracy, politically legitimize the ‘fouls and flaws’ of their ruthless power games, while remaining technically hidden from the glare of the sentinel on the qui vive.

The Citizenship Act, 1955, was originally notified on 30.12.1955. However, it was amended thrice, inter alia, on 28.06.2005 by the Citizenship (Amendment) Act, 2005. The amendment of 2005 introduced the concept of Overseas Citizen of India. Thus Section 7-A to Section 7-D, were added to Citizenship Act, 1955.

As per 2019 Act, there are following five modes for acquisition of status of citizens of India:-

  • By Birth (Section 3)
  • By descent (Section 4)
  • By registration (Section 5)
  • By naturalization (Section 6)
  • By Incorporation of Territory (Section 7)

The aforesaid Sections inserted are kept intact by the Amendment Act, 2019. Only Section 6-B, 7-D and Section 18 are amended besides amendment of Section 2. Before glancing at the amended provisions, we need to bear in mind the constitutional philosophy and concepts.

In order to understand the meaning of the expression citizen, in the context of Citizenship Amendment Act, 2019, one needs to understand the meanings of the words ‘Foreigner’, ‘National’, ‘Migrant’, ‘Illegal Migrant’ and ‘Resident’ (Ordinary resident or Permanent Resident).

The word ‘Foreigner’ is defined, in the ‘Foreigner’s Act, 1946.

The word ‘Nationality’ does not mean citizenship as even juristic persons can wear the tag of nationality even though they are not citizens. However, citizens are certainly an integral part of nationality.

However, a migrant is a person who migrates to India. Migration is voluntarily moving to India but not for specific purpose or for a limited period of time. Migration does not mean change of domicile in international law. Intention of permanent residence is not necessarily ingredient to constitute migration under Article 6 of the Constitution.

‘Illegal Migrant’ has been defined in Section 2(b), the said definition reads as under:-

Section 2(b) “illegal migrant” means a foreigner who has entered into India—

(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time

 

Another concept relevant in the matter is Domicile. Mere residence of a person does not define his Domicile. Domicile is determined on the basis of following two grounds:-

  • The person’s fixed habitation.
  • Such person’s present intention of not moving therefrom.

Domicile acquired by a person by his birth is called Domicile by birth, which continues until a person acquires a new Domicile, animo et facto.

The word ‘Resident’ (ordinary or permanent resident) is analogous to the concept of domicile as contemplated in Article 5 of Constitution of India. Article 5 to Article 11 of Constitution of India are also relevant in the context of the constitutional scheme of citizenship.

 

The distinction between nationality and citizenship was considered at length by Hon’ble Supreme Court in AIR 1963 SC 1811, The State Trading Corporation of India Ltd. and Ors. vs. The Commercial Tax Officer, Visakhapatnam and Ors. The relevant dicta of Hon’ble Bench read as under:-

  1. The operatives are regarded as the ‘brain’ of the corporation and where the brain functions the corporation is held to function. During times of peace a corporation may own property, do business because the Municipal law expressly permits that all this can be done and foreign corporations also obtain the benefit of such laws either because of provisions of the Municipal law or by a comity of nations. In times of was all this changes. The law of nationality is thus a law to determine the enemy character and not a law rec nationality either in a political or municipal sense. There may be some analogy between an individual and a corporation but as Mr. Vaughan Williams said 49 L.Q.R. 334 in an article which has been of great assistance to me, it is not necessary ‘to ride the analogy to death.’ The English Law was summed up by Mervyn Jones (British Nationality Law, Revised Edn.) :

 

The Apex Court also approvingly noted that  Oppenheim in International Law, Lauterpacht Edition p. 642 n. 3 opined as under ;

 

“The nationality of corporations is mainly a matter of Private International Law, and considerations of Public policy have a decisive influence upon the attitude of every State with regard to it.”

“It is not for International Law but for Municipal Law to determine, who is, and who is not, to be considered a subject.”

The Apex Court also approvingly noted that  Hyde in his International Law Vol. 2 (2nd Edn.) p. 1066 also opines :

 

“Citizenship as distinct from nationality, is a creature solely of domestic law. It refers to rights which a State sees fit to confer upon certain individuals who are also its nationals.”

 

Be it democracy or any other form of Government, Citizen Vs. State, issue revolves around the questions of life, liberty and progress of the citizens. All other questions in the narrative of State Vs. Citizen are marginal in value, if not inconsequential. In the narrative of the Citizen Vs. State, the ‘others’ in addition to the aliens, are the unfriendly States, attempting to disrupt and defeat the nation building efforts. In this regard, the words of Kautilya an Arthasastra, being relevant are reproduced hereunder:-

“………….Life is a terrestrial opportunity for unfolding personality, rising to higher states, moving to fresh woods and reaching out to reality which makes out earthly journey a true fulfillment – not a tale told by an idiot full of sound and fury signifying nothing, but a fine frenzy rolling between heaven and earth. The spirit of Man is at the root of Article 21. Absent liberty, other freedoms are frozen.”

The organized street violence in the name of street protests is ‘sound and fury’ as described in the aforesaid opinion.

The Amending Act, 2019, contains the following Sections:-

  1. In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso stands inserted, namely:—

“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 thereunder, shall not be treated as illegal migrant for the purposes of this Act;”.

  1. After section 6A of the principal Act, the following section stands inserted, namely:—

‘6B. (1) 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 this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of sub-section (1) of section 2.

(2) Subject to fulfilment of the conditions specified in section 5 or the qualifications for naturalisation under the provisions of the Third Schedule, a person granted the certificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date of his entry into India.

(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him:

Provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section:

Provided further that the person who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application.

(4) Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.’.

  1. In section 7D of the principal Act,—

(i) after clause (d), the following clause stands inserted, namely:—

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for time being in force as may be specified by the Central Government in the notification published in the Official Gazette; or”;

(ii) after clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”

  1. In section 18 of the principal Act, in sub-section (2), after clause (ee), the following clause stands inserted, namely:—

“(eei) the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B;”.

  1. In the Third Schedule to the principal Act, in clause (d), the following proviso stands inserted, namely:—

‘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”.-

 

The conceptual peregrinations on the subject compel us to avoid excessive legalism. In this regard, opinion of Mr. Justice Brandeis needs to be kept in mind. He said that:

“……….a lawyer, who has not studied economics and sociology, is apt to become a public enemy.”

Mr. Justice Cardozo went further, while holding that the law is always a jealous mistress; but now a days, said Caedozo; she has become “insatiable in her demands. Not brought within her ken, and so within the range sacrifice exacted of her votaries. Those who would earn her best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day.  She will not be satisfied with less.”

Justice Krishna Iyer’s described the said opinion of Justice Cardozo as Cardozian Kamasutra.

The amended Act, 2019, does not apparently curtail any right of the Indian Muslims, living in India. As regards the question of Muslim ‘illegal migrants’, the ground of persecution of a Muslim in the neighbouring Muslim Countries is not ex facie credible, by any stretch of imagination. If still any valid or credible material is available in the hands of so called ‘victims of discrimination’, amended law permits them to seek naturalization as a citizen through due process. Even in such factual scenario, having no shred of discriminatory policy, the misinformation is gaining ground in the politically-chlorinated waters and dark clouds of ignorance rule the roosts.

Is it not a case of ‘gross political illiteracy’ on the part of the dramitis personae responsible for the large scale incidents of violence, arson besides politically engineered extermination of human life?

Do the so called ideologues and string-pullers of politically anaesthetized student community not deserve to be punished as murderers, arsonists and misanthropes?

Nation needs tranquility for development. Misinformation and motivated street violence by raking up the religious sentiments of the vulnerable persons, without any valid justification, is not conducive to the development of the nation, especially in a multi-cultural and multi-religious society, which is sadly hosting 35% of illiterate adult population of the World. In this regard, wisdom of sages shows light in the political bewilderment, where the Frankensteins, hiding as self-styled political leaders, are blatantly attempting to push our vibrant and grand democracy.Various challenges were brought before Court  with an intent to constitutionally legitimize the mode and manner of violent  protests against the citizenship Act by blocking public road.

A recent judgement, known as Shahin Bagh case, titled AMIT SAHNI Versus COMMISSIONER OF POLICE & ORS. , CIVIL APPEAL NO. 3282 OF 2020, Hon’ble Supreme Court reverentially noted the following profound words of Justice K.K. Mathew in the Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. 1973(1) SCC 227

“Streets and public parks exist primarily for other purposes and the social interest 3 See In re Ramlila Maidan Incident, (2012) 5 SCC 1 4 (supra) 10 promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.”

Through the following eloquent observations, Hon’ble Bench of Justice Sanjay Krishan Kaul further attempted to enrich the democratic traditions of with a symmetric vibrancy of lofty values:

“……….while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, who said “In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”), we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest”.

A great sage, Rumi, expresses his wisdom through the following ecstatic phrase:-

‘Out beyond ideas of wrongdoing and right doing there is a field, I’ll meet you there. When the soul lies down in that grass the World is too full to talk about’.

The amending Act, 2019, is a welcome step in the context of nation building exercise.

Hail India! Hail Constitution! Hail Democracy!

Leave a Reply

Your email address will not be published.