The Lede
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Retired justice Kamal Pasha
Retired justice Kamal Pasha
Kerala

“States Have No Say In Blocking CAB”: Retired Judge

Chief ministers Pinarayi Vijayan, Mamata Banerjee & Amarinder Singh may make promises but they cannot deliver as per law

Rejimon Kuttappan

Rejimon Kuttappan

Kerala cannot stay away from implementing the Citizenship Act 2019, a retired Kerala High Court judge said.

“It’s because of illiteracy about the law. The state government doesn’t have a role in this. They are bound to follow the law enacted by the Indian government,” Kamal Pasha, retired Kerala High Court judge, told The Lede.

Yesterday, Kerala Chief Minister Pinarayi Vijayan had said that the Citizenship Act 2019 will not be implemented in Kerala.

“The Citizenship Act 2019 is unconstitutional. It will have no place in Kerala, and it will not be implemented in the State,” Vijayan said, adding that the state government will question the validity of this law at all possible platforms.

“The Supreme Court has repeatedly made it clear that secularism is the foundation of the country’s Constitution. Through this law, the centre is trying to create a communal divide. This is a land where thousands of Muslim brothers came, asserting that they want to live in a secular India than being in a religious Pakistan during the time of partition,” Vijayan said adding that the central government is trying to implement Rashtriya Swayam Sevak (RSS) idea of Hindu rashtra.

Vijayan had also tweeted that democracy in the country was in danger.

“...with CAB, Sangh Parivar has used the majority they enjoy in the parliament to uproot the bedrock of Indian democracy & Constitution. It’s a rejection of secularism. BJP has made it clear that their main political plank is communalism. We must resist,” Vijayan said in a tweet.

Punjab chief minister Captain Amarinder Singh and West Bengal chief minister Mamata Banerjee had also stated that they will not implement the Citizenship Act 2019 in their respective states.

Citizenship And Central List

Meanwhile, talking to The Lede, the retired judge said that the Citizenship Act 2019 has been passed by both houses, signed by Ramnath Kovind, the Indian President, and has also been issued in the gazette too, so there is nothing much that can be done by the Kerala government or any state government.

“Citizenship comes under the central list. The final say is from the central government,” he said adding that state’s role is just to provide nativity certificate when somebody applies for citizenship.

The Citizenship Act 2019, clearly states that the central government or an authority specified by it in this behalf may, subject to such conditions, restrictions, and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause other certain clauses.

And Section 9 of Citizenship Act 1955, clearly states that determination of citizenship any question that arises about the manner of acquisition of the citizenship of another country by any citizen of India, the same shall be determined by the central government.

What Happened In 2015 And 2016?

As per the Citizenship Act, 1955, a person may become an Indian citizen if they are born in India or have Indian parentage or have resided in the country for a particular length of time.

However, irregular migrants are prohibited from acquiring Indian citizenship. An irregular migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted period.

And the irregular migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.

The 1946 and the 1920 Acts empower the central government to regulate the entry, exit and residence of foreigners within India.

However, in 2015 and 2016, the central government had issued two notifications exempting certain groups of irregular migrants from provisions of the 1946 and the 1920 Acts.

These groups are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who arrived in India on or before December 31, 2014.

This implies that these groups of irregular migrants will not be deported or imprisoned for being in India without valid documents.

And in 2016, the Citizenship Amendment Bill was introduced to amend the Citizenship Act, 1955, seeking to make irregular migrants belonging to these six religions and three countries eligible for citizenship and made some changes in the provisions on registration of Overseas Citizens of India (OCI) cardholders.

It was referred to a Joint Parliamentary Committee, which submitted its report on 07 January 2019. The Bill was passed by Lok Sabha on 08 January 2019. However, it lapsed with the dissolution of the 16th Lok Sabha.

Subsequently, the Citizenship (Amendment) Bill, 2019 was introduced in Lok Sabha and Rajya Sabha this week and has been passed.

And the 2019 Act will now make irregular migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.

However, it exempts certain areas in the North-East from this provision.