Awaiting more struggle for acquiring citizenship, writes Urmisree Deb

December 5: Citizenship in India is currently covered under two legislations viz. Constitution of India and Citizenship Act, 1955. However, neither of these legislations have defined citizenship clearly and only provide the prerequisite for a “natural” person to acquire Indian Citizenship. Provisions related to citizenship was discussed in constituent Assembly for three days and 2% of the discussion in the constituent Assembly debate was dedicated to Part II of the Constitution relates to Citizenship of India. Articles 5 to 9 of the Constitution determine who Indian citizens at the commencement of the Constitution are. Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be made by Parliament.

Article 11 of the Constitution of India widens the power of Parliament to regulate the right of citizenship. In other words, the Constitution under Article 11 expressly left acquisition and termination of citizenship and all other matters relating thereto to the Parliament by way of legislation. To quote Article 11 of the Constitution of India “Nothing in the forgoing provisions of this Part of the Constitution shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”.

In exercise of the plenary powers conferred by the Constitution, Parliament has enacted Citizenship Act(LVII of 1955) and received the assent of the President of India on 30th Dec ember,1955 as a permanent measure-making adequate provisions for the acquisition and termination of citizenship subsequent to the commencement of the Constitution. After, its enactment, the Citizenship Act, 1955 has gone through nine amendments.

The Government of India introduced in Lok Sabha on 19 July, 2016, The Citizenship (Amendment) Bill, 2016 (Bill No. 172 of 2016), further to amend the Citizenship Act, 1955. A motion was moved and adopted by Lok Sabha on 11 August, 2016 for the constitution of a JointbParliamentary Committee for the purpose of examination of the Bill and report to the House.The Joint Parliamentary Committee on the Citizenship (Amendment) Bill, 2016 (Chairperson- Mr. Rajendra Agrawal) submitted its report on January 7, 2019. The Bill seeks to amend the Citizenship Act, 1955. Based on its recommendations a fresh bill being Bill No.172-C of 2016 was introduced and was passed by the Lok Sabha on 8 January, 2019. But the government did not introduce it in the Rajya Sabha, apparently due to vehement protests in the Northeast.

The Bill lapsed following the dissolution of the last Lok Sabha. According to Parliamentary procedures, “A Bill pending in Rajya Sabha which has not been passed by Lok Sabha does not lapse on the dissolution of Lok Sabha but a Bill which is passed by Lok Sabha and is pending in Rajya Sabha lapses on the dissolution of Lok Sabha.” So the Citizenship(Amendment) Bill,2019 (Bill No.172-C of 2016 ) lapsed following the dissolution of the last Lok Sabha.

The Central Government is now likely to be introduced afresh Citizenship (Amendment)Bill in Parliament, probably in the first/second week of December of this winter session. The Union cleared the bill to amend the Citizenship Act,1955 on today. The amendment proposed in the Citizenship Act,1955 will extend the facility of Indian Citizenship to a specific class of persons who are presently facing hardships and
difficulties in acquiring citizenship. It will enable acquisition of Indian Citizenship from the date of his entry into India by a person belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Pakistan, Bangladesh and Bangladesh who was forced or compelled to seek shelter in India due to persecution in his country.

Definition of illegal migrants:

The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship. In 2004, this scheme was amended by the introduction of the term “illegal migrant” under Section 2(1)(b) of the Citizenship Act,1955 which was defined as someone who enters or stays in India without legal authorisation. It defines an illegal migrant as a foreigner: (a) who enters India without a valid passport or travel documents, or (b) stays in India beyond the permitted time.

The amendment bill 2019 (December) seeks to change this scheme. It removes the disqualification based on illegal migration for “minority communities,” specifically “Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and 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.” As per proposal of new Citizenship Amendment Bill, these groups would not be considered as “illegal migrants,” for the purposes of Citizenship Act,1955.

Even before introduction the said Citizenship (Amendment) Bill in Parliament, the central government had started taking small and discreet steps towards its operationalisation. In September 2015, the Union government, through two executive order, exempted non-Muslim illegal migrants from the three countries from the operation of the Foreigners Act, 1946. In exercise of the powers conferred by Section 3 of the Passport (Entry into India) Act,1920(34 of 1920), the Central Government makes the rules by further amending the Passport (Entry into India)Rules,1950 Viz. the Passport (Entry into India)Rules,2015.

On the other hand, in exercise of the powers conferred by Section 3 of the Foreigners Act, 1946 (31 of 1946), the Central Government makes the Order by further amending the Foreigners Order,1948 Viz. the Foreigners(Amendment) Order,2015.This provided immunity to this class of migrants from any adverse action by the state due to illegal entry and stay, if they have entered into India on or before 31 December, 2014.The Union government also decided to include Afghanistan alongwith Bangladesh and Pakistan within the ambit of the Notification on 18th July,2016. On 23 October 2018, the Ministry of Home Affairs issued a directive that provided a separate and accelerated process for non-Muslim legal migrants from the three countries to get citizenship. The directive extended this policy that was already in place since 2016.

Citizenship of Person covered under Section 2(1)(b) of Citizenship Act :

As per proposed new Citizenship (Amendment)Bill,2019 after Section 6A of the Citizenship Act,1955 i.e. Special provisions as to citizenship of persons covered by the Assam Accord, one new Section viz.6B shall be inserted –
(1) The central Government or an authority specified by it on this behalf may, subject to such conditions, restriction 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 proviso to clause(b) of sub-section(1) of Section 2.
(2) Subject to fulfillment of the conditions specified in Section 5 of 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.

Legal proceeding:
As per proposed new Citizenship (Amendment)Bill,2019, 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. Such person shall not be disqualified for making application for citizenship under newly inserted Section 6B on the ground that the proceeding is pending against him and the Central Government or authority specified by it on this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship. They shall not be deprived of his rights and privileges on which he was entitled on the date of receipt of his application on the ground of making such application.

Non applicable of Section 6B:

Section 6B of the proposed Citizenship(Amendment)Bill,2019 shall not apply to tribal area of Assam, Meghalaya, Mizoram and Tripura as included in the Sixth Schedule to the Constitution and the areas covered under the “Inner Line” notified under the Bengal Eastern Frontier Regulation,1873. The Sixth Schedule of the Constitution deals with the administration of the tribal areas in the four northeastern states of Assam, Meghalaya, Tripura and Mizoram as per Article 244. The sixth schedule to the Constitution includes 10 autonomous district councils in 4 states. These are:

• Assam: (a) Bodoland Territorial Council, (b) Karbi Anglong Autonomous Council and (c) Dima Hasao Autonomous District Council.
• Meghalaya: (a) Garo Hills Autonomous District Council,(b) Jaintia Hills Autonomous District Council and (c)Khasi Hills Autonomous District Council.
• Tripura: (a) Tripura Tribal Areas Autonomous District Council.
• Mizoram: (a) Chakma Autonomous District Council,(b) Lai Autonomous District Council, (c) Mara Autonomous District Council.
• In terms of Section 2 of the Bengal Eastern Frontier Regulations, 1873, the Inner Line Permit system is prevalent in Arunachal Pradesh, Mizoram and Nagaland. Citizens of other states require an ILP for visiting these three states.

Power to make Rules :

The central Government may, by notification in the Official Gazette, make rules to carry out the purposes of Citizenship Act,1955. As per proposed new Citizenship (Amendment)Bill,2019, in Section 18(2)(ee)of the Citizenship Act,1955, the following section shall be inserted :-
(eei) the conditions, restrictions and manner for granting citizenship under Sub Section(1) of Section 6B.
Third Schedule:-
Third Schedule of the Citizenship Act,1955 deals with qualification for naturalisation . The qualifications for naturalisation of a person are―
(a) that he is not a subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens ofthat country by naturalisation;
(b) that, if he is a citizen of any country,he undertakes to renounce the citizenship of that country in the event of his application for Indian citizenship being accepted;
(c) that he has either resided in India or been in the service of a Government in India or partly the one and partly the other, throughout the period of twelve months immediately preceding the date of the application;
Provided that if the Central Government is satisfied that special circumstances exist, it may, after recording the circumstances in writing, relax the period of twelve months up to a maximum of thirty days which may be in different breaks.

(d) that during the fourteen years immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than eleven years;
(e) that he is of good character;
(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution; and
(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in India, or to enter into, or continue in, service under a Government in India or under an international organization of which India is a member or under a society, company or body of persons established in India:

Provided that the Central Government may, if in the special circumstances of any particular case it thinks fit,―
(i) allow a continuous period of twelve months ending not more than six months before the date of the application to be reckoned, for the purposes of clause (c) above, as if it had immediately preceded that date;
(ii) allow periods of residence or service earlier than fifteen years before the date of the application to be reckoned in computing the aggregate mentioned in clause (d)above.
As per proposed new Citizenship (Amendment)Bill,2019, in the Third Schedule in clause (d) the following provision shall be inserted-
“Provided that for the persons belonging to minority communities, namely,Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India as required under this clause shall be read as “not less than six years” in place of “not less than eleven years”.

Cancellation of registration of OCIs:

The Act provides that the central government may cancel registration of OCIs on certain grounds. These include: (i) if the OCI has obtained registration through fraud, or (ii) within five years of registration the OCI has been sentenced to imprisonment for two years or more. The Bill adds one more ground for cancelling registration, that is, if the OCI has violated any law that is in force in the country.