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n this blow by blow analysis, senior advocate Vijai Sharma walks the reader through the proposed Bill granting citizenship based on religion and ethnicity than on humanity
VIJAI SHARMA | Issue Dated: December 5, 2016, New Delhi
Tags : BJP | Lok Sabha Elections | Prime Minister Narendra Modi | Overseas Citizen of India |

The ruling party in the Centre, the BJP, has a clear stand on illegal migrants. For BJP, the illegal migrants are mainly Muslims who come to India, either on forged documents or infiltrate from Bangladesh and Pakistan. The feeling against illegal migrants is so strong, that when the BJP first came to power under prime minister AB Vajpayee, it made certain amendments to the law to prevent illegal migration from Bangladesh. In February this year, BJP president Amit Shah made it very clear that if voted to power in Assam, BJP would stop illegal infiltration from Bangladesh. Prior to this, in the Lok Sabha elections, the BJP promised the same thing and after forming the government, it is still trying to stop illegal migration. It may be recalled that Prime Minister Narendra Modi, during campaigning in 2014, had made a distinction between Hindu and Muslim refugees from Bangladesh and had argued that the former should be accommodated.

“We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them. We will have to accommodate them here,” Modi had said.

Keeping the electoral promise to provide succour to refugees from neighbouring countries, the Modi government introduced the Citizenship (Amendment) Bill, 2016 on July 19, 2016 in the Lok Sabha. The Bill amends the Citizenship Act, 1955, to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.

The Bill, however, has no provision for Muslim sects like Shias and Ahmadiyas who face persecution in Sunni-dominated Pakistan. The Bill was referred to a Joint Parliamentary Committee for examination and for presenting a report to the Parliament. The committee has had two meetings and is expected to come back in the winter session of 2016 for detailed discussion on the basis of given representations.

Highlights of the Bill

The Bill amends the Citizenship Act, 1955 to make illegal migrants, who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.  Under the Act, the main basis for granting citizenship is on naturalization. “The requirements for citizenship by naturalization are that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 11 year requirement to six years for persons belonging to the same six religions and three countries.  The Bill also provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law”.

Besides, in 2015 and 2016, the Central Government issued two notifications exempting certain groups of illegal migrants from provisions of the 1946 and the 1920 Acts. These groups are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who arrived in India on or before December 31, 2014. This implies that these groups of illegal migrants will not be deported or imprisoned for being in India without valid documents.

The Citizenship (Amendment) Bill, 2016 also seeks to make illegal migrants belonging to the same six religions and three countries eligible for citizenship. The Bill also makes amendments to provisions related to Overseas Citizen of India (OCI) cardholders. A foreigner may register as an OCI under the 1955 Act if they are of Indian origin (eg former citizen of India or their descendants) or the spouse of a person of Indian origin. This will entitle them to benefits such as the right to travel to India, and to work and study in the country. The Bill amends the Act to allow cancellation of OCI registration if the person has violated any law”.

Now the question arises: who really are illegal migrants? The law defines: “A foreigner is considered to be an illegal migrant under two circumstances. One, if they come into India without valid travel documents, like a visa and passport, or two, having come in legally, they stay beyond the time period permitted to them under their travel documents. Illegal migrants may be imprisoned or deported. They and their children are ineligible for Indian citizenship under the Citizenship Act of 1955.”

The 1955 Act provides that the central government may cancel registration of OCIs on various grounds,· including: (i) if the OCI had registered through fraud, or (ii) if within five years of registration, the OCI was 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 in the country.

The bill clearly implies that illegal migrants who are Muslims, other minorities who do not belong to the above groups (eg. Jews), or atheists who do not identify with a religious group will not be eligible for citizenship. Similar to illegal migrants, the suspects are foreigners also. According to rough estimates, approximately 29000 illegal migrants had disappeared in India till December 2014. The largest number among these illegal migrants are from Pakistan (15 per cent), followed by Sri Lanka (14 per cent), South Korea (six per cent) and Iraq (six per cent).

 At present, a person can apply for Indian citizenship on grounds including being born in India, or to an Indian parent, or having resided in India over a certain period of time. However, an illegal migrant is prohibited from becoming an Indian citizen. The amendment Bill provides that illegal migrants belonging to the specified six minority communities from Afghanistan, Bangladesh or Pakistan will not be treated as illegal migrants and will, therefore, be eligible for Indian citizenship.

The Bill also relaxes the eligibility criteria for citizenship for persons from these six minority communities of the three neighbouring countries. As of now, a person must have resided in India for 12 of the 15 years preceding the date of application; the Bill relaxes the 12-year requirement to 7 years for this particular group of individuals.

 According to sources, the joint parliamentary committee took note of at least two dozen of representations and views of groups belonging to Sindhi, Bengali and Gujarati communities on how to go about the proposed amendments in the legislation. The representation is a property of JPC.

The head of the JPC Shri Satya Pal Singh said , "The committee has got  at least a dozen of representations regarding the proposed amendment in the present legislation However, no decision has been taken by the committee yet.”

However the lower house has to discuss the suggestions and proposed amendments before the final verdict of the house. Moreover the government is also yet to reply to the questions posed by a few MPs on the explanations given by Constitutional experts that the proposal to grant Indian citizenship on the basis of religion is violation of the Constitutional provisions. The bill is still open to views and suggestions from individuals and associations or bodies concerned.

Though the memorandums submitted to the committee would form part of the records of the committee and would be treated as “confidential” and would enjoy privilege of the committee. However the apprehension is that it will be not a cake walk for the government to pass this legislation easily.

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Issue Dated: Feb 5, 2017