BHRPC representation to JPC on the Citizenship (Amendment) Bill, 2016

Barak Human Rights Protection Committee (BHRPC) submitted its views and suggestions on the proposed bill to amend the Citizenship Act, 1955 to the Joint Parliamentary Committee on the Citizenship (Amendment) Bill, 2016 on 9 May 2018 at camp at National Institute of Technology, Silchar in Cachar, Assam. The representation supporting the object sought to be achieved by the bill argued that the language employed defeats that very object and renders the bill violative of the constitution of India as well as international human rights laws as expressed through different United Nations negotiated multinational treaties.

The text of the representation:

To

The Hon’ble Chairperson Sri Rajendra Agrawal and his companion Hon’ble members of the Joint Parliamentary Committee on Bill to amend the Citizenship Act, 1955

At Camp at NIT, Silchar

Cachar, Assam

Subject: Recommendations for amendment of the Citizenship Act, 1955 vis-à-vis the Citizenship (Amendment) Bill, 2016.

Hon’ble sir,

Barak Human Rights Protection Committee (BHRPC) expresses heartfelt gratitude for your visit to Silchar and particularly for holding this consultation with the people of Barak valley who are facing threats to their citizenship

BHRPC is a human rights group that endeavours to generate awareness of human rights among  all  stakeholders,  monitors  and  documents  cases  of  violations including cases of decitizenisation. Geographically  its  works  mainly  focus on  the  southern  part of  the  state  of  Assam  comprised of the districts of Cachar, Karimganj and Hailakandi. However, this self-funded voluntary group of human rights defenders also does its best to address cases of violation happening elsewhere in the state.

BHRPC presents its views and recommendations on the Citizenship (Amendment) Bill, 2016 on behalf of the people of Assam from the human rights point of view as follows:

  1. The statement of objects and reasons attached to the abovementioned bill states that “under the  existing  provisions  of  the  Act,  persons  belonging  to  the  minority communities, such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have either entered into India without valid travel documents or the validity of their documents have expired are regarded as illegal migrants and hence ineligible to apply for Indian citizenship. It is proposed to make them eligible for applying for Indian citizenship.” Though it is not stated expressly in the bill, the underlying reason for making the abovementioned persons eligible for Indian citizenship is understood to be their victimization in sectarian violence in their countries.

  1. Of course, it is a humanitarian response to the suffering, the members of vulnerable groups of people in India’s neighbouring countries are made subject to, worthy of the largest democracy in the world. It is informed by Indian constitutional ideals of humanitarianism and respect to human rights as well as India’s legal and moral obligations under the international humanitarian and human rights laws.

  1. The modern international law relating to the issue at hand is based on Article 14 of the Universal Declaration of Human Rights, 1948 that reads, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” This has been elaborated in several international conventions including the Convention relating to the Status of Refugees, 1951 and its 1967 Protocol[1].

  1. The international laws relating to the issue also find place in the Convention relating to the Status of Stateless Persons, 1954 and the Convention on the Reduction of Statelessness, 1961.

  1. The honoured principle of non-refoulement is also reiterated in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[2].

  1. BHRPC is aware that India is not a party to the international conventions mentioned above. However, these are the documents containing laws of the civilized nations regarding the issue under consideration[3]. India, therefore, should ratify these conventions and frame a uniform immigration policy in conformity with the norms promulgated there.

  1. Coming to the bill under consideration, the clause 2 fails to live up to the principle of international law and also runs afoul to the cardinal constitutional principle of secularism that forms the basic structure[4] and principle of equality of treatment as enshrined in Article 14 by naming certain religious demonination while excluding others by implication. The bill also does not mention that the persons to be made eligible for citizenship should come in India owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion as provided in the Convention relating to the Status of Refugees, 1951 as amended its 1967 Protocol. In fact, the bill does not provide any basis for according them citizenship other than their being member of the named religious groups, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians. Thus it excludes other minorities who are often persecuted in the neighbouring countries such as Shias, Ahmadias, Atheists, Sexual minorities, political dissenters etc. and Muslims in Myanmar[5]. The classification has no reasonable basis and there is no nexus between the object sought to be achieved and the legislation. Therefore, the bill is in its present form unconstitutional as it is hit by Article 14[6].

  1. The wording of the clause goes against the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 to which India is a State Party. Article 1 of the Convention defines the term “racial discrimination” to mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The bill excludes people who otherwise should be included on the basis of religious and ethnic identity.

  1. To save the bill from unconstitutionality and to bring it in line with India’s obligation under international human rights law, the clause should provide that any person who comes to India from any neighbouring country for being victimized in sectarian violence or for fear of such victimization irrespective of their religions shall not be treated as illegal migrants.

  1. The immediate trigger for presenting the bill came, it is understood, from fear of decitizenisation of people belonging to linguistic minorities, though the bill does not address this issue directly. This needs to be addressed to prevent gross violation of human rights of a large section of people belonging to a number of ethnic/linguistic groups including Bengalis and Nepalis. The threat comes from the arbitrary procedure of updating the National Register of Citizens (NRC).

  1. The NRC rules[7] provides that only the name of person whose name appear in any of the electoral rolls prior to the year 1971, or in National Register of Citizens, 1951 and descendants of the persons mentioned above should be entered in the updated NRC.

  1. This rule is in breach of sub-section 7 of section 6A of the Citizenship Act, 1955.[8]

  1. According to the Representation of Peoples Act[9], 1950 as interpreted by the Supreme Court[10] those whose names are there in a final electoral roll must be presumed to be entered after due scrutiny giving rise to a presumption of their citizenship.

  1. The NRC updation rules referred to above is also in breach of this law as laid down by the apex court of the land.

  1. Moreover, the said illegal procedure certainly falls under the rubric of arbitrary procedure within the meaning of Article 14 of the Constitution of India.

  1. The basis of modern international law regarding right to a nationality is enshrined in Article 15 of the Universal Declaration of Human Rights, 1948 that provides that everyone has the right to a nationality and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

  1. It is, therefore, necessary to add a subsection to section 6A clearly providing that the person whose names appear in any electoral roll as voters shall be presumed to be citizen of India.

  1. BHRPC, therefore, recommends to the JPC that the bill should be re-written in the following terms:

  1. In subsection (1) of section 2 of the Citizenship Act, 1955 (hereinafter referred to as the Act), the following proviso shall be inserted after clause (b), namely:

“Provided that persons who migrated to India from the neighbouring countries, namely, Afganistan, Pakistan, Nepal, Bhutan, Srilanka, Bangladesh and Myanmar for being victimized in sectarian violence or for fear of such victimization irrespective of their religions shall not be treated as illegal migrants for the purposes of this Act.”

  1. In the Act, in section 6A, after sub-section 7 the following subsection shall be inserted, namely:

“7A:  The person whose name appears in any electoral roll as voters shall be presumed to be citizen of India.”

  1. In clause 3 in the Third Schedule of the Act, the following proviso shall be inserted, namely:

“Provided that for the persons mentioned in proviso to clause (b) of subsection (1) of section 2, 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 months” in place of “not less than eleven years”.”

Clause 3 of the bill may be retained verbatim.

  1. BHRPC further recommends that:

  • India should ratify the Convention Relating to the Status of Refugees, 1952 and its protocol, namely, Protocol Relating to the Status of Refugees, 1967.

  • India should ratify the UN Convention relating to the Status of Stateless Persons, 1954 and the UN Convention on the Reduction of Statelessness, 1961.

  • India should ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
  • India should formulate a uniform immigration policy in line with the above international treaties.

  • India should take proper actions in appropriate international forums on cases of atrocities on minorities and vulnerable groups and gross violations of their human rights happening in neighbouring countries.

 

Looking forward to a report from your end that incorporates the above recommendations leading to a non-discriminatory law according citizenship of persons migrated to India from neighbouring countries owing to persecution for their identity or belief or views, or for fear of such persecution and protecting citizenship of genuine Indian citizens.

 

With warm regards

Taniya Sultana Laskar

Secretary General,

Barak Human Rights Protection Committee

Silchar, Assam


[1]  Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee as this:  “A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”

[2] Article 3 of the Convention provides that no State shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

[3] India is a signatory to the Universal Declaration of Human Rights and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4]  Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 and S.R. Bommai v. Union of India, AIR 1994 SC 1918 and several other judgments of the Supreme Court.

[5] Whereas the situation of Rohingya Muslims in Myanmar is described by the United Nations as facing the risk of ethnic cleansing, see https://www.theguardian.com/world/2017/sep/05/more-than-120000-rohingya-flee-myanmar-violence-un-says

[6] State of Madras v. V. G. Row 1952 AIR 196

[7] Sub-clause (a) and (b) of clause 2 of the Schedule framed under Rule 4A (4) of the Citizenship (Registration of Citizens and Issue of Identity Cards) Rule 2003 titled Special Provisions as to Manner of Preparation of National Register of Citizens in the State of Assam.

[8] Sub-section 7 of section 6A of the Citizenship Act, 1955 provides that who were citizens of India before 1985 are exempted from the operation of section 6A that enacts the rule about 1966 and 1971.

[9] Section 16 of the Representation of People Act, 1950 provides for disqualification for registration in an electoral roll and it it includes not being a citizen of India meaning that those whose names are there in a final electoral roll are found to be citizens after due scrutiny as prescribed by law.

[10] Lal Babu Hussein & Others v. Electrol Registration Officer  and Others 1995 AIR 1189

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