• Stambh Organization

Migration, Refugee and Citizenship


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.


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