Introduction
A group of individuals makes society, these societies join together to make state
or country and all these countries living in a peaceful co-existence make the
world. Earth is divided by borders into several countries and the people living in
it are its citizens who may be part of the same country due to a variety of
reasons like ethnicity, geography, rule, language, etc. But sometimes there are
various (political, social, or religious) factors which can lead to the dominance
of a class or group of classes and persecution of others, to avoid this one may
have to displace themselves to another place within the country or outside it.
Relocation on the other hand can also happen for better opportunities in
education, for economic reasons, for growth, etc. This article will be discussing
to main causes for relocation to gain better clarity on both and laws in India
made for citizenship.
Keywords: refugee, migrants, citizenship Amendment Act,2019, effects of
CAA.
Who are Refugees and Migrants?
As per the Cambridge Dictionary refugee means “A person who has escaped from
their own country for political, religious or economic reasons or because of
war.” or “a person who leaves his or her home or country to find safety, esp.
during a war or for political or religious reasons.” Refugees do not move
voluntarily rather they have to switch places or countries due to unavoidable
external forces; these reasons are beyond their control. Persecution is one main
reason for people to migrate, such persecution can be due to the above-
mentioned reasons, Article (1)(A) of the Refugee Convention list 1951 states
the same thing1 as Dalai Lama relocated himself in India because of the
Chinese suppression. Refugees cross borders leaving their valuables and
property, if any, to seek asylum in neighbouring countries where they may seek
help from states, the United Nations agencies, and other organizations. They
move to avoid deadly consequences and denial of asylum can have terrible
consequences. There are many international laws related to refugees (for their
rehabilitation etc.,), many treaties on which signatory countries have made
national laws; the basic principle underlying all these laws is the protection of
human rights.
The word migrant, on the other hand, is not properly defined in any of the
international legislations, Cambridge defines migrants as “a person who travels
to a different country or place, often in order to find work.” They make a well-
the informed choice to move for a better life, such displacement is not linked to
harassment or persecution of any sort. These people research well before
moving for better opportunities, life, study, etc., and may return to their home
anytime they like. Neither are these people ousted from the country nor are they
escaping some bad fate, they are simply moving to provide themselves and their
families better life quality. Denial to migrants may strain international relations
between the countries but do not have a deadly consequence, as in the case of
refugees. Migrants move from within the country or internationally.
Both of them are quite different, but the only similarity between them is
migration i.e., moving from one place to another is happening in both cases,
though the cause may differ.
Let's analyze a very recent law passed by India for refugees, keeping the above
content in mind.
Citizenship Amendment Act,2019
In 2019 certain amendments are made in the Citizenship Act,1955(hereinafter
mentioned as Principal Act) which aims to provide citizenship to illegal
migrants of Afghanistan, Bangladesh, and Pakistan, who belong to some
specific communities, namely- Hindu, Sikh, Christian, Parsi and Jain as per
section 3 of the Citizenship amendment act,2019; who entered India on or
before 31 December 2014. On fulfilling conditions of section 5 of the Principal
Act they can obtain a certificate of naturalization or certificate of registration.
This power to make Acts for citizenship is given by article 11 of the
Constitution of India (hereinafter as COI).
They also need exemption under the Foreigners Act, 1946 and Passports (entry
into India) Act,1920.2 This Act has also amended the period of residence to
“less than 5 years” from “less than 11 years” to claim citizenship. All such
individuals would be considered citizens of India from their entry date into
India and all proceedings related to illegal immigration and citizenship shall be
closed. Rest all the provisions of the principal Act apply as it is.
CAA is not applicable in the 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, 1873.3 Act also talks about provisions related to an overseas citizen
of Indian cardholder.
The Amended Act does not include any branch of persecuted Muslims. The Act
mentions illegal migrants, they are those foreigners who enter into India
illegally without documents like visa or passport or enter legally but stay
beyond the permitted time. In a way, this act is making provisions for illegal
migrants to seek citizenship, not only that it is structured in a way by which
citizenship regulations are eased. The Act is a huge part of controversy for not
including persecuted sections of the Muslim community and is considered
violative of Article 14 of the Constitution of India.
A writ under Article 32 was filed by the Indian Union Muslim League
challenging constitutionality of the Act.4 There are various other petitions
added to this who claim CAA to be considered void on the grounds of it being
arbitrary, violative of the fundamental right to equality and dignity of illegal
migrants under Articles 14 and 21 of the constitution. Most petitions focus on
the point that CAA is violative of Article 14, in the case of R. K. Garg and Anr.
v. UOI (1981) the two judges bench declared that parliament cannot enact a law
that is arbitrary or irrational between groups of persons as per Article14.
Analysis of CAA
View against CAA-
There is no specific statute in India for refugees, however, the constitution of
India includes in it a word ‘alien’ to whom certain rights are given same as the
citizens, refugees are aliens. Complying with international declarations and
treaties, some statutes for entry of refugees and asylum seekers have been made
from time to time which is not discriminatory on any basis. On the other hand,
for CAA,2019 some people have a view of it being arbitrary, discriminatory,
violative of Article 14. The law has been accused of the easy rule to giving
citizenship to the non-Muslim crowd of neighboring countries of India.
• Analysed under Indian law, CAA is said to violate Due Process as it is
not an inclusive law and is said to strategically exclude Muslim minorities
which violates the Basic Principles of The Constitution. The objective of the
Government to frame such a law as per its own words is to protect religious
minorities from being persecuted in the neighboring Islamic States, but there
seems lacuna of any justified test for such religion-based law. Constitution’s
Article 21 states, “that no person shall be deprived of his life or personal liberty,
except according to procedure established by law” and Article 14 states that,
“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”. keeping both of these in
mind when a probe of CAA is done one can clearly understand that it denies
equal status on the basis of religion.
• Act is Arbitrary
Religious minorities of some specific countries Pakistan, Afghanistan, and
Bangladesh only is included making the Act arbitrary. For this, one needs to
focus on articles 14 and 15 of the Constitution, as Article 15 does not apply to
non-citizens we will have to go further with Article 14. Supreme Court in
Navtej Singh Johar judgment under Article 14 laid two tests –
• The Classification should be on the intelligible differential, that
differentiates one group from the other
• Such differentiation should have a connection with the objective to be
achieved.
Hence there should be a reasonable connection between differentiation and
the object sought, but the Government did not show any intelligible differentia here.
even though these countries are Islamic States, yet minorities of other
Islamic sects are also persecuted here, like Shia and Ahmadiyya Muslims in
Pakistan.
Views in favor of CAA-
As everything has a negative and a positive side, so does the current Act, this
section contains the flip side of the coin displaying views that favor CAA.
Claims are made that CAA has a two-fold purpose of not only providing long-
desired statehood to refugees so that they can finally call someplace as their
land but also to follow constitutionalism.
Three countries which the Act specifies at least two of them have a State-
Religion owing to which people of other religions are considered as second-
grade citizens and are brutally persecuted. To help such refugees Indian
The government took a firm step to formulate such a statute. Voices of dissent
against CAA criticize exclusion of Muslims, Act has included persecuted
minorities, persecuted Muslim minorities are Ahmadiyya's and Shia’s.
In India Muslims of the Sunni sect are in majority in the Muslim community, in
the 2011 census we started recognizing the Ahmadiyya sect. But there are
various examples where Indian Muslims have acted violently and brutally
against Ahmadiyya's, they consider Ahmadiyya's as an apostate. As a
consequence, adding them to the act would only disturb the law and order of
India and nothing more.
Whereas Hazara Muslims of Afghanistan are not persecuted religiously but fled
due to atrocities of the Taliban and currently are thriving in west Kabul, in fact,
it is safe for them to return now.
The allegation of the arbitrariness of including some countries while excluding
others can be explained by the reason that act focuses on religiously persecuted
minorities. Rohingya Muslims are not religiously persecuted minorities of
Myanmar, due to ethnic detachment, a threat to the security of the countries, and
terrorism (ARSA) Rohingya exodus took place, excluding them from the list
seems quite genuine. Many other countries other than Myanmar (Bangladesh,
India and Indonesia) have pointed potential of Rohingyas to cause terrorism by
joining hands with other extremist groups and consider them as a threat to the
security of the Nation. This is enough to justify the exclusion of Rohingyas.
Tamils of Sri Lanka have also not been excluded for a similar reason, due to
ethnic conflicts between Sinhalese and them for 3 decades they were refugees
and persecuted. Present situations have changed drastically for the better and
there is peace in Sri Lanka, in fact, many Sri Lankan Tamils are migrating back
to their homeland with the help of UNHCR who is rehabilitating them.
In this fast paced life we all want a place where we can live in peace for a while
and enjoy our bonds, culture, religion, and surroundings. Religious and cultural
divides and misunderstandings sometimes lead to some stern actions by some
members of a community which can be brutal on the people who endure it. But
everybody needs a place to call home, a place which is their own, like Israel for
persecuted Jews, a place to which they connect and live freely and peacefully.
This is one of the basic human rights.
For this purpose refugees of other countries are given asylum and there is a
concept of citizenship by naturalization in every country. Not just to honour
various treaties of human rights, but also to show their humane side and give
shelter to such individuals. This Act was no doubt made to fulfil this very duty
and balancing security of the country with human rights it is given well codified
and justified to include specific religious communities from 3 countries only. As
and when there may feel a need to include other persecuted groups I hope the
country will definitely extend its hands and make some more legislation
including them, as for now, this law seems justified and valid.
ABOUT THE AUTHOR -
Kompal Arora, Research Intern, Stambh Organization India.