The Citizenship (Amendment) Act, 2019 been enacted now in India is a great savior for the refugees who entered into India in a hope for protection against the religious persecution/discrimination in their country of Origin. The amendment aims to naturalize Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and declares not to treat them as illegal migrant.
The amendment is being voiced as discriminatory only for the reason for not including Muslims from countries mentioned in the Act. The spokesperson of UN High Commissioner for Human Rights in a statement has stated the act to be discriminatory and against the Covenant of Civil and Political Rights and Convention for the elimination of Racial Discrimination.
LawNat undertook the task to test the Act amid statements, voices and concerns so raised and therefore undertook the research to test if the Act is discriminatory and for what reasons? Religion or Nationality.
Following from the statement of the High Commissioner for Human Rights it would be necessary to find about the International Covenant on Civil and Political Rights, 1966 which is totally aimed with an object to set out all the obligations of State (Nation or Governments) to provide the declared Civil and Political Rights to its Subjects i.e. lawful Citizens.
It would be important to point that Article 13 of the Covenant provides expulsion or non expulsion of an Alien who is lawfully present in the territory of the State Party. The convention does not provide any thing with respect to an Alien who is unlawfully present in the territory of the State Party.
Hence, as per the conclusion of LawNat the International Covenant does not apply to the Act and the Act is not in conflict to the International Covenant on Civil and Political Rights, 1966.
Now while going through Part I of the International Convention on the Elimination of All Forms of Racial Discrimination under Article 1.2 LawNat found that “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
Article 1.3 clearly states that the present convention shall not be interpreted to affect in any way the legal provisions of the State Parties concerning nationality, citizenship or naturalization if they do not discriminate against particular nationality.
As per Article 1.2 and 1.3 the amended Act cannot be said to be discriminatory on both the counts i.e. the State Party is free to make distinctions, exclusions and restrictions between citizens and non-citizens and nothing from the present convention will affect such legal provision unless it discriminates on the basis of nationality.
In the light of the above one can say that the Act is discriminatory only for the reason for naming of the three countries and not for excluding Muslims. In other words, the Act by restricting the applicability of concession given to the religious minorities on the basis of nationality has called in Article 1.3 to affect the legal provisions of the Act and hence discriminatory.
The Act has further narrowed the scope of the Act for the reason of limiting it to only three countries. The question is what about the named minorities from Mayanmar, Thailand or any other country who may be found as staying in India before or after the declared date?
The conclusion of LawNat is that by restricting the applicability of the Act only within three Countries the Act not intentionally but, inadvertently gets affected by Article 1.3 of the convention and technically, by naming three Countries the same becomes discriminatory as well.
While it may be the object of the Act to remove such minority migrants of the named countries from the category of illegal migrants here, the naming of countries itself creates discrimination as per the Convention therefore, deletion of names of the countries could be corrective and technical measure.
Note: The views expressed are purely for academic discussion and do not reflect any social or political opinion and are as per the Policy of LawNat.
