There is a fundamental difference in the underlying philosophy deployed by India and the United States when it comes to granting citizenship to illegal immigrants. HAMZA LAKDAWALA explores the key differences in their approaches and makes a case for India to adopt the American way.
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ON Thursday, the United States House of Representatives passed two key bills that will create a pathway to citizenship for millions of undocumented immigrants, some migrant farmworkers, and children whose parents immigrated legally to the country, like those under the H-1B visa program. The American Dream and Promise Act of 2021 was welcomed by President Joe Biden, who described it as a critical first step in reforming the country's immigration system.
The bill will provide much-needed relief to Temporary Protected Status (TPS) holders and Dreamers. Dreamers are undocumented immigrants who enter the United States with their parents when they are children. There are an estimated nearly 11 million [1.1 crore] undocumented immigrants in the United States, including over 5,00,000 from India.
The first largely applies to those immigrants, popularly known as Dreamers. Approximately 2.5 million [25 lakh] people who arrived in the United States as children will be eligible for a path to citizenship under the law. It also seeks to provide a path to legal status for farmworkers who are in the country illegally, estimated to be at least half of the 2.4 million [24 lakh] workers in the agriculture sector.
India recently enacted the Citizenship (Amendment) Act, 2019, popularly known as the CAA. Like the American Dream and Promise Act, the CAA also aims to provide illegal immigrants a pathway towards citizenship. Both laws focus on granting citizenship to illegal immigrants who are already in their respective countries, and not to new refugees. However, there is a fundamental difference between the underlying principles based on which a pathway to citizenship is being offered by the two countries.
The American law grants citizenship based on the immigrants' "illegal" status and date of arrival. On the other hand, India's CAA grants citizenship based on the illegal migrants' date of arrival, but more importantly, religious identity.
Deferred Action on Childhood Arrivals (DACA) is a program that shields some young undocumented immigrants—who often arrived at a very young age in circumstances beyond their control—from deportation.
“India CAA, like the American Dream and Promise Act, aims to provide illegal immigrants a pathway towards citizenship. Both laws focus on granting citizenship to illegal immigrants who are already in their respective countries, and not to new refugees. However, there is a fundamental difference in their underlying principles.
In 2012, President Barack Obama issued the DACA executive order after the Development, Relief, and Education for Alien Minors (DREAM) Act did not pass in Congress several times. The young people impacted by DACA and the DREAM Act are often referred to as "Dreamers."
The recipients of DACA are young people who have grown up as Americans, identify themselves as Americans, and many of them speak only English and have no memory of or connection with the country of their birth. Under current immigration law, most of these young people had no way to gain legal residency even though they have lived in the United States most of their lives.
Many DREAMers say they did not know they were unauthorised immigrants until they were teenagers—often when they discovered they could not join their peers in getting a driver's license or filling out financial aid forms for college because they did not have social security numbers.
The DREAM Act would have provided a pathway to United States citizenship to certain undocumented youth who go to college and/or serve in the military and have a good record.
The CAA amends the definition of "illegal immigrant" for Hindu, Sikh, Parsi, Buddhist, and Christian immigrants from Pakistan, Afghanistan, and Bangladesh, who have lived in India without documentation. They will be granted fast-track Indian citizenship in six years instead of 12 years of residence, which was the standard eligibility requirement for citizenship by naturalisation.
Notably, the CAA intentionally excludes Muslims from receiving a fast-track path towards citizenship.
The justification offered by the central government is that Muslims living in Pakistan, Afghanistan, and Bangladesh, are not [religious] "minorities" in their own countries, and therefore cannot seek the benefits under the CAA, which aims to grant citizenship to persecuted minorities from these countries.
This argument falls flat because numerous Muslim sub-sects regularly face sectarian persecution and frequently flee to India seeking refuge. And while the bill's primary goal is to grant citizenship to "persecuted minorities" in neighbouring countries, it has left out Buddhists from China, Dalits from Nepal, and others. The arbitrary exclusion of minorities from these countries has been questioned by many, but the state is yet to clarify its reasoning.
Illegal immigrants, and more specifically their children who are born on foreign soil, suffer from statelessness.
In India, there are no measures in place to recognise the unique requirements of immigrant children in the country. Immigrants and asylum-seekers face additional requirements to access the Indian health system and enjoy little information or support targeted to meet their specific health needs. Without citizenship, they are deprived of access to healthcare, education, and a host of welfare schemes the government enacts for the upliftment of the underprivileged.
India ranked the lowest among 52 countries assessed for key indices of migrant inclusivity in 2020 according to the recently launched Migrant Integration Policy Index. India scored the least, 24 out of 100, far lower than the average of 50, putting it in a category where migrant integration is deemed "denied".
In most situations, any child born in the United States or one of its territories will automatically receive American citizenship. This is called "birthright citizenship" and is protected by the 14th Amendment to the United States Constitution, which (in section 1) states the following:
All persons born or naturalised in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.
The protections under the 14th Amendment also extend to children of undocumented immigrants who were born in the country. They become United States citizens automatically, regardless of their parent(s)' immigration status. However, children of undocumented (illegal) immigrants who were, like their parents, born outside the United States do not enjoy similar protections.
After Partition, citizenship in Indian was linked to the birth of the person in the undivided territory of British India. This made religion as a precondition to citizenship irrelevant and ensured that every person born in undivided India enjoyed citizenship.
The Citizenship Act was later amended to the effect that any person born after 26 January 1950 but before 1 July 1987 would be a citizen of India by birth irrespective of the nationality of his parents. However, those born after 1 July 1987 but before 3 December 2004 would be considered citizens of India by birth only if either of their parents were a citizen of India at the time of their birth.
The law was further amended in 2003 to restrict who could acquire citizenship by birth. Following this amendment, a person born in India on or after 3 December 2004 is considered a citizen of India by birth if both the parents are citizens of India, or one of the parents is a citizen of India and the other is not an illegal migrant at the time of his birth.
The current Indian citizenship law largely follows the principle of jus sanguinis (citizenship by descent) as opposed to the jus soli (citizenship by right of birth within the territory).
Legal scholars, academics, activists, and journalists have termed the CAA discriminatory and violative of the Indian Constitution. The Constitution only defines who is a citizen of India at the time of commencement of the constitution. Under Article 11, the Constitution empowers Parliament to frame the law and rules regarding citizenship. The Constitution does not expressly define the philosophy to be invoked by Parliament while it frames the law regarding citizenship. However, a quick look at the Constituent Assembly debates sheds some light on the subject.
During the framing of the Constitution, Constituent Assembly member Alladi Krishnaswami Ayyar noted:
"We are plighted to the principles of a secular State. We may make a distinction between people who have voluntarily and deliberately chosen another country as their home and those who want to retain their connection with this country. But we cannot on any racial or religious or other grounds make a distinction between one kind of persons and another, or one sect of persons and another sect of persons, having regard to our commitments and the formulation of our policy on various occasions."
Additionally, when Articles 6 and 7 were being debated, some members of the Constituent Assembly argued that preferential treatment should be given to Hindus and Sikhs because "neither the Hindu nor the Sikh has any other place in the wide world to go to". In response, an overwhelming majority of the Assembly decided that there was no question of making religion a basis for citizenship.
In his intervention in the Constituent Assembly debates on 12 August 1949, Jawaharlal Nehru explained that when it came to "…people who are the victims in some way or other of Partition…one has inevitably to do something which involves the greatest amount of justice to our people and which is the most practical solution of the problem. You cannot in any such provision lay down more or less whom you like and whom you dislike…I think the drafters of these proposals have succeeded in a remarkable measure in producing something which deals with 99.9 percent of cases with justice and practical common sense."
It is therefore abundantly clear that while the Constituent Assembly decided to allow Parliament to frame the law regarding citizenship, it expected Parliament to do so while acting within a secular Constitution. Religion as a criterion for citizenship was expressly rejected during the drafting of the Constitution. Therefore, any citizenship law that uses religion as a criterion is contrary to the original intent of the framers and violates the secular spirit of the Constitution.
The state—whichever it may be—should strive to ensure that race, religion, place of birth, and nationality do not prejudice the seeker's chances of receiving asylum or citizenship. The base criterion should not be discriminatory and arbitrary. This is exactly where America's new law passes, while India's CAA fails.
The contrast could not have been any starker. While America has reversed its xenophobic and anti-immigrant policies to open its borders to immigrants and refugees, India, which was celebrated as a cauldron of cultural and religious diversity, has arbitrarily closed its borders to deserving asylum-seekers from its neighbouring countries.
“Any citizenship law that uses religion as a criterion is contrary to the original intent of the framers and violates the secular spirit of the Indian Constitution. The state—whichever it may be—should strive to ensure that race, religion, place of birth, and nationality do not prejudice the seeker's chances of receiving asylum or citizenship.
While the challenge before the Supreme Court is pending, the CAA has caused India enough embarrassment on the world stage and has led to widespread protests at home. It is never too late to right a wrong. India must reconsider its stand on CAA.
(Hamza Lakdawala is a researcher and writer from Mumbai, India. He is currently a Research Associate at the Chambers of Senior Advocate Indira Jaising. The views expressed are personal.)