Home Ministry Order Reignites Citizenship Debate

A home ministry order has empowered collectors in 13 districts of Gujarat, Chhattisgarh, Rajasthan, Punjab, and Haryana, as well as the Secretary of the Department of Home in Haryana and Punjab, to grant a certificate of registration as an Indian citizen or of naturalisation to those belonging to six communities from Afghanistan, Bangladesh, and Pakistan who may be residing under their jurisdiction. This has led to much debate, though CAA, 2019, was not the first legislation to use the specific names of these six communities from these countries, write FUZAIL AHMAD AYYUBI & IBAD MUSHTAQ.

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SINCE the past week, social media platforms have been abuzz with posts about how the Ministry of Home Affairs has acted upon the controversial Citizenship (Amendment) Act, 2019, even though no rules have yet been framed.

The reason – an order issued by the Foreigners' Division of the Ministry on May 28, 2021, inviting applications from minority communities in Afghanistan, Bangladesh and Pakistan (namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians), for registration as citizens of India under Section 5, of the Citizenship Act,1955, or for grant of certificate of naturalisation under Section 6.

While some questioned "how" and others "why", let us begin with "what", so that the right questions and their legal answers may be placed for the understanding of the readers.

May 28 Order

The home ministry through its May 28 order has empowered collectors in 13 districts of Gujarat, Chhattisgarh, Rajasthan, Punjab and Haryana, as well as the Secretary of the Department of Home in Haryana and Punjab, to exercise the powers of the central government in granting a certificate of registration as an Indian citizen (Section 5) or of naturalisation as an Indian citizen (Section 6) to those belonging to the above-mentioned communities from those countries, who may be residing under the jurisdiction of such a collector or home secretary.

This is a delegation of power that the centre has conferred upon the indicated collector or home secretary.

While the effect seems to be same as that envisaged under the Citizenship (Amendment) Act, 2019, this exercise is being done as per Citizenship Rules, 2009 and certainly not for the first time. 

A similar delegation of power, under Section 16 of the Citizenship Act, 1955, was done in 2016 and 2018, well before CAA, 2019 was conceptualised.

What are the Citizenship Rules, 2009?

The Citizenship Act, 1955, envisages several modes through which one can be an Indian citizen–by birth (Section 3); by descent (Section 4); by registration (Section 5); by naturalisation (Section 6); by incorporation of territory (Section 7). While there remains Section 6A for persons covered under the Assam Accord and the newly added (by CAA, 2019) Section 6B, the present analysis will be limited to Sections 5 & 6, i.e., citizenship by registration and naturalisation as this is what has been  referred to in the latest notification.

Section 5 provides for citizenship by registration to "any person not being an illegal migrant" if the person belongs to any of the seven categories enumerated under Clause (1) of Section 5.

This includes, amongst others, persons of Indian origin ordinarily residing in India for seven years prior to applying for registration [Section 5(1)(a)].

Section 6 provides for citizenship by way of naturalisation to any person "not being an illegal migrant" subject to fulfilling the criteria for naturalisation under the third schedule of the Citizenship Act, 1955.

These include continuous residence in India for at least 12 months prior to making an application for naturalisation with an aggregate period of residence in India of 11 years in the past 14 years preceding the application. This "aggregate" period of 11 years now stands reduced to five years after the CAA, 2019, for persons belonging to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Afghanistan, Bangladesh or Pakistan.

Also Read: How a Nationwide Register of Citizens violates Citizenship Laws and the Constitution

It may be noted that the specific manner in which the certificate of registration or naturalisation may be provided is laid down under Citizenship Rules, 2009. They provided for a specific manner and contain the relevant forms to be filled by applicants while making an application for registration under various clauses of Section 5(1) [Rules 4 to 9 and corresponding Forms II to VII] or for naturalisation under Section 6 [Rule 10 and corresponding Form VIII].

The process envisaged under the 2009 Rules includes making an application to the collector under whose jurisdiction the prospective applicant is ordinarily residing [Rule 11] and forwarding that application by the collector to the state or Union Territory administration, along with his report [Rule 12].

Thereafter, there will be scrutiny of the application and particulars received from the State/UT administration by the central government [Rule 13] and then grant of certificate of registration/naturalisation by the centre. This certificate is to be issued under the 2009 Rules by "an officer not below the rank of Under Secretary to the Government of India".

Also Read: Citizenship's Rule of Exception

The May 28 order as well as the previous orders of 2018 and 2016, reduce this entire procedure and confer upon the collectors and home secretaries, as mentioned above, the power to not only receive an application under Section 5 or 6, but grant the final certificate of registration or naturalisation under the 2009 Rules.

This raises yet another question – if the May 28 order is under the 2009 Rules, what about the naming of the same six communities from the three nations, as used in the CAA, 2019?

Language Same as CAA?

The answer is simple – it is a mistaken presumption that CAA, 2019 was the first legislation to have used the specific names of six minority communities from the three neighboring countries, though it may have been the first legislation using such nomenclature to have been popularised and advertised politically at such a large scale. 

While the 2009 Rules were originally envisaged to be in line with the conditions of registration/naturalisation which was to be enabled for "any person not being an illegal migrant", between 2014-16, even before the first draft of the Citizenship (Amendment) Bill, 2016 was introduced in Parliament, various amendments were made not only to the 2009 Rules but to the Passport (Entry into India) Rules, 1950, to provide enough backing for granting citizenship by registration/naturalisation to persons of the communities mentioned. All these amendments between 2014 to 2016, used the same language but were not popularised in the manner  CAA, 2019 was.

Also Read: Why the Citizenship (Amendment) Bill, 2019 is unconstitutional

These amendments include changes in the forms contained under the 2009 Rules, wherein 2018 a question was added in each form seeking to know whether the person making application belongs to "one of the minority communities from Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christian".

Even before that, in 2016, appropriate amendments were made in the 2009 Rules. These were to ensure that in case applicants from these communities applied in the absence of the collector, an officer not below the rank of sub-divisional magistrate, authorised in writing by the collector, may administer the oath of allegiance to them.

Before this, in 2015-16, the Passport (Entry into India) Rules, 1950, were amended to exempt these communities from the applicability of the two-fold requirement of entering India as envisaged under the 1950 Rules.

Around the same time, by way of inclusion of Paragraph 3A in the Foreigners Order, 1948, it was provided that the same class of persons belonging to minority communities from the three neighboring nations who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December 2014, even without any documents shall be exempted from the provisions of Foreigners Act, 1946 and orders made thereunder.

Passport (Entry into India) Rules, 1950

The 1950 Rules were made under the Passport (Entry into India) Act, 1920, which empowers the centre to make rules requiring that persons entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose [Section 3(1)].

The same 1920 legislation, appropriately amended post-independence, also empowers the government to make such rules so as to prohibit the entry into India or any part thereof of any person who has not in his possession a passport issued to him [Section 3(2)(a)]; prescribe authorities by whom passports must be issued/renewed, and the conditions to be complied [Section 3(2)(b)]; and, most importantly, to "provide for the exemption, either absolutely or on any condition, of any person or class of persons from any provision of such rules" [Section 3(2)(c)].

Also Read: Citizenship (Amendment) Bill, 2019: Discord with the Accord

The 1950 Rules therefore lay down the conditions for entering India that will be applicable to any person. These conditions, under Rule 3, read with Rule 5, are two-fold – Firstly, a person entering, or attempting to enter, India by water, land or air, should be in possession of a valid passport, with a photograph affixed on the same, of the country that such person relates to be a national as well as a valid visa.

Secondly, such a person should be entering through such port (including an airport) or other place as may be specified in this behalf by the centre. Thus, the two requirements are possession of valid passport/visa and entering through designated entry points to India.

Rule 4 provides an exemption to certain classes of persons which included members of Naval, Military or Air Forces of India, entering India on duty, and their families, Nepalese or Bhutanese persons entering through Nepalese or Bhutanese frontier, bona fide Mohemmedan pilgrims domiciled in India returning from Jeddah or Basra, amongst others.

In 2015, by way of an amendment to the 1950 Rules, sub-rule (ha) was added to the aforesaid Rule 4 which absolutely exempted persons belonging to "minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31^st December 2014, without valid documents including passport or other travel documents".

In 2016, by way of another amendment, Afghanistan was added to sub-rule (ha) under Rule 4. Therefore, as far back as 2015-16, persons belonging to the very same communities from the three nations were completely exempted from the two-fold requirement under the 1950 Rules.

What did CAA, 2019, do?

All that the CAA, 2019 did, or seeks to do, is to classify the same set of persons with two additional benefits –they will not be treated as "illegal migrants" and reducing the aggregate period of ordinary residence for naturalisation from 11 years to five.

While exempting this class of persons from being illegal migrants, the CAA, 2019 refers to such persons as those who have been exempted under Section 3(2)(c) of the Passport (Entry into India) Act, 2019.

The May 28 order, therefore, leads to confusion as if the same is issued under CAA, 2019, which does provide that the rules for the manner in which citizenship by way of registration of naturalisation, under the newly added Section 6B, shall be notified later. Such rules have so far not been notified.

(Fuzail Ahmad Ayyubi is an Advocate-on-Record at the Supreme Court and Ibad Mushtaq is a Delhi-based advocate. The views expressed are personal.)