- Silpi Jain*
I. Introduction
Citizenship in democratic nation-states, since the time of Aristotle, requires active participation in the political community by the individuals who are considered members of that nation-state.[1] India, being a democratic nation-state, also reflects general notions of participation and civic self-rule. The citizens of India are required to participate in the political community, thereby ensuring that they are treated as political agents and not mere subjects. It is therefore evident that India grants citizenship to those who can prove their allegiance to the political community in one form or another.[2] A close observation of the recent trend in the laws enacted and schemes introduced by the Indian government for granting citizenship or residence to any person,[3] however, marks a shift away from these notions of individual participation. Extraneous considerations, such as one’s religion or financial status, are increasingly being taken into account for the same, which otherwise would hold no place in a democratic and secular nation-state.[4] In order to understand this shift in which citizenship is granted in India, it is important to look at the status of Indian citizenship in light of the legal framework on citizenship, as well as the new laws and policies which have been framed by the Indian government on the same. In this context, the author seeks to analyse the interplay between two laws: the Citizenship (Amendment) Act, 2019 (‘CAA’) and the Permanent Residency Status Scheme, 2016 (‘PRS Scheme’). Part II of this paper will introduce CAA and PRS Scheme by explaining what each of these encompass, and briefly discuss the overlap between the two. Part III will discuss in detail the effect of the interplay between the two by using hypotheticals and finally, Part IV will provide a conclusion to the discussion. In this paper, the author attempts to highlight the effect of a simultaneous reading of the two laws, the CAA and the PRS Scheme, on certain marginalised groups of people in India, and how it effectively places them at a more disadvantageous position than some other groups of people.
II. Legal framework: CAA, PRA and Citizenship in India
In India, the Constituent Assembly, which was responsible for the drafting of the Constitution of India, 1950 set out the law on who would be considered a citizen at the time of its commencement, in the aftermath of the Partition.[5] The scope of these constitutional provisions was, however, restricted to the determination of citizenry only at the time of its commencement.[6] Thereafter, the Parliament, in exercise of its power under Article 11 of the Constitution, enacted the Citizenship Act of 1955 (‘the Act’) in order to introduce a substantive framework for determination of citizenship.[7] The Act grants Indian citizenship based on five criteria: birth, descent, naturalisation, registration and territorial incorporation.[8]
It is, however, seen that with the passage of time, the idea of citizenship in India has undergone gradual transformation with amendments to the Act.[9] These amendments highlight the government’s policies towards identified groups belonging to certain ethnicity and religious backgrounds.[10] In December 2019, the Parliament passed an extremely controversial amendment to the Act, the CAA, which has received huge public and media attention and has become a subject of extensive criticism and debate.[11] The CAA essentially amends the Act to enable fast-track citizenship for particular religious groups in two ways. First, it makes illegal immigrants from three countries - Afghanistan, Bangladesh and Pakistan, belonging only to Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious groups - eligible for citizenship by registration or naturalisation if they arrived before or on December 31, 2014, by not considering them as illegal migrants.[12] Second, it reduces the requirement of minimum period of residency for naturalisation to five years (besides the one year residency required immediately preceding the application)[13], from the earlier eleven years, for those belonging to the aforementioned categories.[14] Thus, it entitles Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants, but not Muslim immigrants, from the aforementioned countries to these benefits, thereby carving out exceptions to the normal rule applicable to illegal immigrants, and to the period of residence for naturalisation.
While the CAA received a vast amount of attention, both from scholars and media, and led to public outrage across the country,[15] another scheme (the PRS Scheme), rolled out by the government in 2016 did not garner as much public attention and discourse, almost escaping public scrutiny. The PRS Scheme grants residency for a period of ten years, and is renewable for another ten years with multiple entry to foreign investors fulfilling certain pre-conditions.[16] The foreign investor has to make a foreign direct investment worth minimum Rs. 10 crores within 18 months, or of Rs. 25 crores within a period of 36 months, and such investment must result in employment to at least 20 resident Indians in every financial year.[17] Further, the scheme is inapplicable to Pakistani citizens or Pakistani origin third-country nationals.[18] The scheme is more in the nature of a long term visa issued to foreign nationals, unlike the usual business and employment visas which are issued for shorter durations.[19] It essentially allows high net-worth individuals to get fast-track residency by making an investment in the country.
It is interesting to note that the CAA and PRS Scheme factor in considerations, such as religion and financial capability of an individual respectively, for the grant of citizenship. However, these factors are beyond those which are normally required to assess whether or not an individual should be granted citizenship or residency in a democratic country like India. It is also pertinent to note that while the CAA affects citizenship directly, the PRS Scheme grants long-term residency which serves as a gateway to citizenship since a minimum period of residency is the primary requirement for acquiring Indian citizenship.[20] The commonality between the two is that both make exceptions to the general rule on acquiring citizenship and residency in India, in the manner mentioned before. A vast amount of literature has emerged on CAA and its impacts on a secular nation-state like India.[21] Similarly, the concept of granting citizenships and residency based on investment (known as Immigrant Investor Programmes or golden visa for residence and golden passport for citizenship)[22] has been debated and critiqued upon by scholars worldwide.[23] Therefore, instead of exploring the concepts individually, the next two sections will seek to analyse the interplay between CAA and PRS Scheme and highlight the effect of the two laws when they interact with each other, with the help of hypotheticals. It is worth mentioning that the observations in the following sections are purely legal and theoretical in nature and may not have any practical significance, especially since the PRS Scheme had not found a single applicant in India even by 2018.[24]
III. The effect of interaction between the CAA and the PRS Scheme
Though India is a democratic country subscribing to notions of civic participation in the polity by individuals, recent trends have shown an influence of other extraneous considerations. With increasing tightening of immigration controls in India, it is ironic that the Indian government is making laws empowering certain categories of people to bypass the usual laws and get an easier and faster route to residency and citizenship. The effect of the CAA and the PRS Scheme interacting with each other puts certain groups at a more disadvantageous position than others. The following analysis emphasises upon the intersectionality of the two markers that underlie the CAA and PRS Scheme: religion and financial capacity. This section attempts toto illustrate that those people who are negatively affected by both the laws are rendered more vulnerable than those affected by either one, or none of the two laws.
A. Discrimination based on financial capabilities
A perusal through the provisions of the CAA shows that certain categories of individuals who belong to select religious groups from specified countries have been exempted from being classified as illegal immigrants, even if they fail to show documentary proof of the legality of their status.[25] The same legislation excludes certain other categories, such as Muslim individuals, from any country from this benefit, and presumes them to be illegal migrants if they are not legally residing in India or fail to show documentary proof. This prima facie creates a distinction between these categories without any plausible justification. However, it is seen that the PRS Scheme creates a way around the CAA for specific individuals among the categories of people who are exempted from the benefit provided under the proviso to section 2(1)(b) of the Act, and who are otherwise treated as illegal migrants.[26] Individuals who are financially capable of making an investment equaling or more than the minimum amount required under the PRS can therefore pay the same to get around the CAA. By doing the same, they would be considered legal migrants despite having no former documentary proof or being otherwise considered as illegal migrants under the Act.[27] This shows that the interplay between CAA and PRS leads to discrimination at two levels - first by discriminating based on faith and religion and second, by further discriminating between the rich and the poor among those who are disqualified at the first level. To simplify, a Hindu from Bangladesh can qualify as a legal migrant/resident under the CAA irrespective of being rich or poor, and without having to produce any documentary proof for showing that they are indeed legal migrants. On the other hand, a poor Muslim migrant who fails to show documentary proof will be considered an illegal migrant under the CAA, but a rich Muslim (non-Pakistani) migrant, who is disqualified under the CAA, will be considered a legal resident if he can make an investment of the amount required under the PRS Scheme.
India is not a signatory to the Refugee Convention of 1951 nor does it have a refugee protection framework.[28] Evidence of various steps taken by the government in refusing protection to refugees has been observed in recent times. For instance, the Indian government did not provide legal protection to Myanmar’s Rohingya Muslim minority who sought refuge in India and in fact, attempted to throw them out of the country.[29] The overpopulated detention centres in Assam is another proof of the government’s approach to exclude and eliminate refugees.[30] While the Government of India is consistently trying to remove migrants from India and refusing to grant protection to refugees, it is granting long-term residency to those migrants who have the financial resources to become eligible under the PRS Scheme.
Therefore, the PRS Scheme clashes with the consistent approach adopted by the Indian government to exclude migrants from the Indian territory. It provides a distinct access to residence, based solely on financial requirements, by a procedure which is much simpler and more certain than the usual traditional immigration routes available to people seeking residence in India.[31] Essentially, it provides an added advantage and a greater privilege to those who are rich by providing them with easier access to residency, even though the tendency of the Indian government, generally, is to tighten immigration routes. Illegal migrants who often reside in India since birth or otherwise, but for long periods of time, face the risk of deportation. However, these investors, based only on their ability to transfer capital from one country to another, get a privileged route to remain in India lawfully. Subsequently, they even get to apply for and secure citizenship after fulfilling the minimum residency requirement without any connections to India.
The PRS Scheme follows the footsteps of other countries which have instituted numerous investor visa programs. Countries like the UK, Australia, Malta and Portugal grant fast-tracked residency to investors in exchange for their investment.[32] All of these countries, including India, bypass the standard requirements for civic-integration for granting residency to these wealthy individuals. The common argument given by governments for justifying such investment visa programs is that they have a positive impact on the economy of the recipient country.[33] However, data released by Canadian government showed that there is hardly any positive impact on the economy by virtue of such programs.[34] In fact, after obtaining residence in the country of investment, the investors do not display any real connection to the nation-state either.[35]
The PRS Scheme measures the value of residence in India in terms of money, contradicting the notions of civic and political participation embedded in the idea of citizenship and residence. While it restricts access to the most vulnerable groups such as poor Muslims, it simultaneously relaxes it for wealthy individuals, belonging to the same religious group. This effectively exacerbates the inequality already present in the Indian society. Therefore, while the CAA discriminates between different religious and ethnic groups, the PRS further aggravates the problem by creating a further layer of discrimination between the rich and poor.
To conclude, this Part dealt with the first implication of a combined reading of the PRS Scheme and the CAA, which is with respect to the difference created in terms of who would be considered a legal or illegal migrant based on financial capabilities. The next part deals with the implication on the time period in which foreign investors under PRS Scheme would be able to apply for citizenship by naturalisation, depending on their religion.
B. Discriminating based on religious identity
The PRS Scheme grants long-term residence in India to all foreign investors uniformly, except to those from Pakistan or having Pakistani origins.[36] While there is equality in providing residence under this Scheme, it is seen that reading it with the CAA creates an inequality in terms of acquiring citizenship by naturalisation among those who are granted long-term residence under this scheme, based on which religious group they belong to. For instance, a Hindu and a Muslim, both from Afghanistan, apply for and are granted long-term residence under the PRS Scheme. However, through the application of the CAA, while the Hindu individual will be eligible to apply for naturalisation as a citizen by residing in India for one year preceding the date of application plus five years preceding such period,[37] the Muslim individual will have to reside for eleven years instead of five years, preceding the one year before application.[38] Therefore, while both make a monetary investment under the PRS Scheme and are entitled to residence for an equal period, they are discriminated in terms of acquiring citizenship based on which faith they subscribe to.
The above hypothetical illustrates how religion has become a factor for acquisition of citizenship in India, when, ideally, it should be religion-neutral in nature.[39] Not only does the CAA discriminate in favour of non-Muslim migrants from Pakistan, Afghanistan and Bangladesh by removing the ‘illegal migrant’ label and de-stigmatising them,[40] it also creates a religious distinction in the acquisition of citizenship in a more direct manner. The government, in its defense of the CAA, has argued that the fast-track citizenship is provided to the specified categories of people because they face persecution in their country of origin.[41] However, it does not provide this protection to other migrants, like Rohingya Muslims, who also face persecution and threat to life and security in their country of origin.[42]
The citizenship provisions in a democratic and secular country like India should not be influenced by religious identities. Religion becoming an influencing and determinative factor ina law as significant as citizenship law marks a dangerous shift from civic-nationalism to ethno-religious nationalism.[43] Even though religious markers existed at the time of drafting of the Constitution in the aftermath of the Partition, in how the Assembly chose to define refugees and migrants, they were never directly and openly expressed.[44] The Assembly eventually adopted a democratic idea of citizenship, independent of religious or ethnic identities, and gave primacy to the jus soli form of citizenship.[45] The citizenship law enacted in 1955 was informed by universalist and inclusive ideals, granting membership based on certain objective markers.[46] However, subsequent amendments to the Act have shown a transition of the jus soli citizenship to a more jus sanguinis or descent-based principle.[47] While jus soli citizenship guarantees plurality, diversity and inclusiveness, as it grants citizenship to anyone born on the Indian soil, jus sanguinis is exclusionary in nature, as it is linked to blood relations, and therefore on religious identities.[48] Elements of religion are slowly and gradually seen to be creeping in through various amendments to the Act over the years.[49] The CAA marks a sharp shift from the democratic and secular notions of citizenship. The discrimination between those making equal investments under the PRS to obtain residency in India purely based on religious markers is thought-provoking.
IV. Conclusion
The analysis in the previous sections highlights the effect of the Indian government’s policies towards immigration. The intersectionality of groups adversely affected under the CAA and under the PRS Scheme contains the poor Muslim individuals, who end up being even more disadvantaged and vulnerable due to their religious identity and financial position. Not only are they termed as ‘illegal migrants’ and subsequently deported, their position is exponentially worse than those affected only by one of the two laws. This is due to the fact that they would not be able to avail the benefits available under both the CAA and the PRS Scheme. Thus, a poor Muslim would be rendered more marginalised than a rich Muslim or a poor Hindu due to the reasons explained in the previous sections. The intersectionality of the issues and the interplay of the two laws acts with the effect of further marginalising the marginalised. Factors such as money and financial background and religious identity are preferred over important and more real considerations such as the vulnerability of the migrant or the threat to his life or security. In effect, the laws and policies on citizenship in India seem to have lost their earlier secular and democratic character. It is true that the above critique of taking into account factors such as religion or capacity to pay for determination of citizenship and/or residence are also individually applicable to the CAA and the PRS Scheme or any immigrant investor program, respectively. However, the aim of this paper has been to show the heightened and aggravated effect caused by combined and simultaneous reading of the CAA and the PRS for particular groups of people.
* Silpi Jain is a 5th year student at the National University of Juridical Sciences, West Bengal.
[1] ‘Citizenship’ (Standard Encyclopedia of Philosophy, 17 July 2017) accessed 15 May 2021; Joseph Carens, ‘In Defense of Birthright Citizenship’ in Sarah Fine and Lea Ypi (eds), Migration in Political Theory (OUP 2016) 208. [2] The requirement of minimum residency period under Citizenship Act, 1955, Third Schedule, Clause (d) read with Citizenship Act, 1955, Third Schedule, Clause (c) for naturalisation as a citizen in India highlights this point. Allegiance to a nation-state and its political community essentially entails proving that one is loyal and committed to that nation-state and residency is a common way of ascertaining allegiance. [3] The term ‘citizenship’ is distinct from the term ‘residence’. A citizen is someone who belongs to the country in every sense of the term, while a resident is legally residing/staying on the territory but not does not hold full and complete rights that are given to a citizen. For instance, a passport can be issued to a citizen only. A citizen can exit and re-enter the country of which he or she is a citizen, but a resident may not be given an unrestricted access to enter and exit the territory. Voting rights are also generally only granted to citizens of the country. Moreover, residency is in most cases, conditional and for a specific duration, for instance someone who enters India on a work visa may be a legal resident for the duration permitted by the visa. [4] Amandine Scherrer and Elodie Thirion, ‘Citizenship by Investment and Residency by Investment schemes in the EU, State of play, issues and impacts’ (2018) European Parliamentary Research Service, accessed 15 May 2021, 26; Niraja Jayal, ‘Faith-based citizenship: the dangerous path India is choosing’ (The India Forum, 13 November 2019) accessed 15 May 2021. [5] Ashna Ashesh and Arun Thiruvengadam, ‘Report on Citizenship Law: India’ [2017] European University Institute, Country Report 2017/12, 6. [6] ibid 8. [7] ibid 8. [8] The Citizenship Act 1955, ss 3-7. [9] Niraja Jayal, ‘Faith-based citizenship: the dangerous path India is choosing’ (The India Forum, 13 November 2019) accessed 15 May 2021. [10] For instance, in 2004, Section 3 of the Citizenship Act was amended such that any person, even if born on Indian territory, but whose even one parent was an illegal migrant at the time of his or her birth was disqualified for citizenship by birth, with effect from 2004. Given that at the point of time in which this amendment was brought about, most of the migrants from Bangladesh were Muslims, the exception to jus soli form of citizenship was evidently created to exclude the children of such Muslim migrants. Also, the Citizenship Rules were amended at the same time for destigmatising Hindu migrants coming to India from Pakistan with Pakistan citizenship such that they were no longer considered ‘illegal migrants’. (See, Lovish Garg, ‘If India Wants to Remain Secular, the New Citizenship Bill Isn't the Way to Go’ (The Wire, 21 September 2016) accessed 15 May 2021). [11] The Citizenship (Amendment) Act 2019. [12] Citizenship Act 1955, s 2(1)(b) Proviso (introduced by The Citizenship (Amendment) Act 2019). [13] Citizenship Act 1955, Third Schedule, Clause (c). [14] Citizenship Act 1955, Third Schedule, Clause (d), Proviso (introduced by The Citizenship (Amendment) Act 2019. [15] Tanvi Khemani, ‘Amid anti-CAA, NRC protests. Artists in India are creating and sharing a portrait of dissent’ (Firstpost, 28 December 2019) accessed 15 May 2021; Shaj mohan and Divya Dwivedi, ‘The Current Protests in India are a Training Ground for a Break with the Past’ (The Wire, 25 January 2020) accessed 15 May 2021. [16] Grant of Permanent Residency Status to Foreign Investors, Ministry of Home Affairs, 2016. [17] ibid. [18] ibid. [19] FAQs Relating to Work Related Visas Issued by India, Ministry of Home Affairs; Ranjit Malhotra and Anil Malhotra, ‘India: The Corporate Immigration Review: Edition 10’ (2020) The Law Reviews, accessed 15 May 2021. [20] Citizenship Act 1955, Third Schedule, Clause (d) read with Citizenship Act 1955, Third Schedule, Clause (c). [21] Abhinav Chandrachud, ‘Secularism and the Citizenship Amendment Act’ [2020] 4 Indian Law Review; V Sudhish Pait, ‘Citizenship Amendment Act- A Critique’ (The SCC Online Blog, 5 March 2020) accessed 15 May 2020. [22] Jelena Džankić, ‘Immigrant investor programmes in the European Union’, (2018) 26(1) Journal of Contemporary European Studies; Amandine Scherrer and Elodie Thirion, ‘Citizenship by Investment and Residency by Investment schemes in the EU, State of play, issues and impacts’ (2018) European Parliamentary Research Service, accessed 15 May 2021, 5. [23] Peter J. Spiro, ‘Cash for Passports and the End of Citizenship’ (2018) Debating Transformations of National Citizenship, accessed 15 May 2020; Ayelet Shachar and John Krzyzaniak, ‘Golden Visas, Dreamers, & Ethics in Immigration, with Ayelet Schachar’ (2018) Ethics & International Affairs, accessed 15 May 2020; Ayelet Shachar and Rainer Bauböck, ‘Should Citizenship be for Sale?’ (2014) European University Institute, Working Paper RSCAS 2014/01, accessed 15 May 2020. [24] Vijaita Singh, ‘Foreign investors cold to Permanent Residency Status scheme’ (The Hindu, 20 May 2018) accessed 15 May 2021. [25] Citizenship Act 1955, s 2(1)(b) Proviso (introduced by The Citizenship (Amendment) Act 2019. [26] To clarify, the CAA brought about two amendments (as discussed in Section II above), one of which is it exempts certain categories of people from being considered illegal migrants. This does not necessarily (and by itself) grant them citizenship. Therefore, the point that the author is attempting to make here is the effect of the interaction between CAA and PRS Scheme is such that it results in some categories being considered as legal migrants/residents (and not citizens). [27] It may be argued that investment would inevitably require adequate paperwork and documentary proof, but in the absence of the PRS Scheme providing any clarity on the kind of documentation that an investor would require, it cannot be presumed that the documentation required under CAA and PRS Scheme would be the same. Further, it still does not vitiate the argument that somebody who is poor and disqualified by CAA may not be at the same plane as somebody who is rich but disqualified by CAA. [28] ‘India’ (2011) UNHCR Global Appeal 2011 Update, accessed 15 May 2021. [29] Apoorvanand, ‘The new citizenship bill and the Hinduisation of India’ (Al Jazeera, 12 January 2019) accessed 15 May 2021. [30] Niraja Jayal, ‘Faith-based citizenship: the dangerous path India is choosing’ (The India Forum, 13 November 2019) The India Forum, accessed 15 May 2021. [31] Amandine Scherrer and Elodie Thirion, ‘Citizenship by Investment and Residency by Investment schemes in the EU, State of play, issues and impacts’ (2018) European Parliamentary Research Service, accessed 15 May 2021, 5. [32] Ayelet Shachar, ‘The Marketisation of Citizenship in an Age of Restrictionism’ (Ethics & International Affairs, March 2018) accessed 15 May 2021. [33] Xin Xu, Ahmed El-Ashram and Judith Gold, ‘Too Much of a Good Thing? Prudent Management of Inflows under Economic Citizenship Programs’ (2015) IMF Working Paper, WP/15/93, accessed 15 May 2021; Ayelet Shachar, ‘The Marketisation of Citizenship in an Age of Restrictionism’ (Ethics & International Affairs, March 2018) accessed 15 May 2021. [34] Ayelet Shachar, ‘The Marketisation of Citizenship in an Age of Restrictionism’ (Ethics & International Affairs, March 2018) accessed 15 May 2021. [35] ibid. [36] Grant of Permanent Residency Status to Foreign Investors, Ministry of Home Affairs, 2016. [37] Citizenship Act 1955, Third Schedule, Clause (d), Proviso (introduced by The Citizenship (Amendment) Act 2019 read with Citizenship Act 1955, Third Schedule, Clause (c). [38] Citizenship Act 1955, Third Schedule, Clause (d) read with Citizenship Act 1955, Third Schedule, Clause (c). [39] ‘Citizenship Amendment Bill: India's new 'anti-Muslim' law explained’ (BBC News, 11 December 2019) accessed May 15 2021. [40] Citizenship Act, 1955 Section 2(1)(b) Proviso (introduced by The Citizenship (Amendment) Act 2019. [41] The Citizenship (Amendment) Bill 2019, Statement of Objects and Reasons, 4; ‘India: Citizenship Bill Discriminates Against Muslims’ (Human Rights Watch, 11 December 2019) accessed 15 May 2021. [42] ‘India: Citizenship Bill Discriminates Against Muslims’ (Human Rights Watch, 11 December 2019) accessed 15 May 2021. [43] Niraja Jayal, ‘Faith-based citizenship: the dangerous path India is choosing’ (The India Forum, 13 November 2019) accessed 15 May 2021. Civic nationalism is premised upon a rational and liberal way of thinking whose underlying basis lies in human rights and personal freedoms. It places minimum or no significance to race, culture, language and religion. On the other hand, ethno-religious nationality is based on a shared heritage, common language, common religion and ethnicity (See, Yael (Yuli) Tamir, ‘Not So Civic: Is There a Difference Between Ethnic and Civic Nationalism?’ [2019] 22 Annual Review of Political Science.) [44] Niraja Jayal, ‘Faith-based citizenship: the dangerous path India is choosing’ (The India Forum, 13 November 2019) accessed 15 May 2021. [45] ibid. [46] ibid. [47] Niraja Jayal, ‘Faith-based citizenship: the dangerous path India is choosing’ (The India Forum, 13 November 2019) accessed 15 May 2021. [48] Niraja Jayal, ‘Reconfiguring Citizenship in Contemporary India’, [2019] 42 Journal of South Asian Studies. [49] Francesca Raimondo, ‘The Religion of Citizenship: the Indian Citizenship Amendment Act 2019’ (IACL-AIDC Blog, 2 July 2020) accessed 15 May 2021.