However, it does not grant the same citizenship rights to persons from Muslim community from Afghanistan, Bangladesh or Pakistan, or does not include other minority groups like Tamil Sri Lankans from Sri Lanka, or Rohingya Muslims from Myanmar.

In a span of three days, the nature of Indian citizenship changed from secular in character to be based on religious identity. The Bill is being justified on the ground that India has always been home to ‘persecuted religious minorities’, and this law only furthers that aim. But that is the most disingenuous explanation ever, which flies in the face of the text of the law, and the intentions of the present regime.

The citizenship in India is governed by the Articles 5-11 of the Constitution as well as by the Citizenship Act, 1955. Article 5 of the Constitution provides for citizenship at the commencement of the Constitution, i.e., if a person is born in India, or either of her parents were born in India, or been ordinarily a resident in India for not less than 5 years is a citizen of India. Section 3 of the Citizenship Act further elaborates on citizenship by birth, and states that if a person is born in India from 26.11.1950 to 01.07.1987, or born after 01.07.1987 to before the commencement of the Citizenship (Amendment) Act, 2003 and one of her parents is an Indian citizen, and if born after the 2003 Act, then either both parents are Indian citizens, or one parent is an Indian citizen, and the other parent is not an ‘illegal migrant’, then such a person is a citizen of India.

Section 4 of the Act provides for citizenship by descent, i.e., if a person is born outside India from 26.11.1950 to 10.12.1992, but the father is an Indian citizen at the time of her born, or born after 10.12.1992, and either of her parents is an Indian citizen at the time of her birth, then she becomes an Indian citizen by descent. Section 5 provides for citizenship by registration, while Section 6 provides for citizenship by naturalization. Section 6A provides for special provision for Assam, which we know provided the legal basis for National Register of Citizens (‘NRC’) for Assam, pursuant to the Assam Accord in 1985. Thus, it is clear that citizenship in India till recently was governed by birth, descent, naturalization, and place of origin, but it was granted to anyone who fulfilled the criteria, irrespective of religion, caste, class, creed, gender or other status.

Let us now examine the provisions of the current Bill to understand what it seeks to achieve. The Statement of Object and Reasons states that “millions of citizens of undivided India belonging to different faiths were staying in the said areas of Pakistan, Afghanistan, and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.”The catchword is ‘persecution on the grounds of religion’, which finds no mention in the text of the Bill.

The Bill amends the definition of ‘illegal migrant’ in Section 2 (b) of the Citizenship Act, 1955 by excluding ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian community in Afghanistan, Bangladesh or Pakistan, who has entered India on or before 31st December, 2014’ from the definition. There is no mention of religious persecution, and it is assumed that just by virtue of belonging to a minority community, one would face religious persecution in Afghanistan, Pakistan or Bangladesh. Even if in practice it is true, the law cannot presume religious persecution from the start. The Bill then provides an elaborate procedure for the grant of registration of citizenship to the persons mentioned above, including a provision for cessation of any pending legal proceeding relating to illegal migration or citizenship on the commencement of the Citizenship (Amendment) Act, 2019 thereby overturning the very nature of citizenship in India. It further reduces the number of years one needed to reside in India to be eligible for citizenship from 11 years to 5 years.

The Bill violates the basic structure of the Constitution, including the fundamental right to equality and non-discrimination guaranteed under Articles 14 and 15 of the Constitution by discriminating against the Muslim community on the basis of religion. There is no rational basis to exclude persons belonging to Muslim community facing religious persecution, or why only three countries are mentioned and not others.

At the heart of this is the principle of secularism, which part of basic structure of the Constitution, and cannot be negated. In S.R. Bommai v. Union of India (1994) 3 SCC 1, the Nine Judge bench of the Supreme Court emphatically held that “secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. This may be a concept evolved by western liberal thought or it may be, as some say, an abiding faith with the Indian people at all points of time. That is not material. What is material is that it is a constitutional goal and a basic feature of the Constitution as affirmed in Kesavananda Bharati. Any step inconsistent with this constitutional policy is, in plain words, unconstitutional.” The CAB violates this violates this fundamental tenet of the Indian Constitution, and its democratic structure.

It is important to bear in mind that the CAB has not come out of thin air, since the Modi Government was laying down the ground work in the last five years. On September 7, 2015, the Central Government issued a notification under the Passport (Entry into India) Rules, 1950, wherein persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian community in Bangladesh or Pakistan, who has entered India on or before 31st December, 2014, owing to fear of religious persecution, and without valid travel documents, were exempt from legal proceedings. Thereafter, on July 18, 2016, the Central Government amended the Foreigners Order, 1948 to add ‘Afghanistan’ to the list of Bangladesh and Pakistan, from where religious minorities could come to India. All these notifications built the base for bring in CAB, which institutionalized the discriminatory citizenship rules in legislation now.

However, the issue of CAB is not just about the fears of ‘foreigners’ flooding the North East but fundamentally, it is about the exclusion of Muslim refugees from the legal protection. One can’t view CAB in isolation, but an integral aspect of the proposed national NRC, which this Government has been threatening to unleash on more than 100 crore citizens of India. The singular object of the proposed national NRC is to make all Muslim persons’ Indian citizenship a suspect in the eyes of law, unless proven otherwise. The horrors of the NRC in Assam are being played out, with 19 lakh persons being excluded, and the BJP State Government having even rejected the existing NRC, and demanding a fresh NRC in Assam. Imagine the horrors if it is extended to the whole of India. The argument that those who have been excluded from NRC would be included through CAB, except Muslim persons, is completely flawed, since under CAB, one has to show that one was a resident/citizen of Afghanistan, Bangladesh or Pakistan, and thus covered under CAB.

The Act is unclear what documents would be required, but it is predicated on the fact that one was a resident of either of the three countries, and entered India on or before 31.12.2014. If one cannot prove that, one can’t avail the benefit of citizenship under CAB. Under NRC, one has to show documents to prove one’s Indian citizenship through different documents, and if excluded from NRC, one can’t possibly claim to be resident/citizen of Afghanistan, Bangladesh or Pakistan. It is not just completely irrational and illogical, but diabolical what this government is doing to its very own citizens. No so-called democratic State has plunged an entire nation into crisis calling into question each of one its resident’s citizenship status.

In the history of every nation, there comes a time, when its citizens rise up against its own government, owing to political, economic and social factors, in India, that time has come months back, but clearly now. The constitutional core of this country is being ripped apart, the gains of freedom struggle been squandered, instead of facilitating people to live a life of dignity and freedom, this Government only seeks to heap indignity on its own people. Whether or not the CAB is struck down by the Courts, which it should urgently, it is up to the people of India now to protect each other, and jointly fight the forces of bigotry who are wielding power in Centre now. (IPA Service)