Comparing citizenship provisions between India & Afghanistan

Published: January 2, 2020

The citizenship amendment act 2019, makes it easier for non-muslim migrants from Bangladesh, Pakistan and Afghanistan to get Indian citizenship. Let’s look at the third country, which is Afghanistan.

Afghanistan has a long history of conflict and invasions, though no empire or nation could have a long control of Afghanistan. Even the British could not keep Afghanistan under control, inspire of three wars since 1839 and were defeated in 1919. It was not a part of British India and has not been partitioned from India, one of the reasons for enacting CAA. Afghanistan got independence in 1919 under the treaty of Rawalpindi while simultaneously signing a treaty of friendship with Russia.

The Constitution for Afghanistan was put up by King Amanullah in 1921 and again in 1923, but he was removed by the Tajiks in 1929 and a new constitution enacted in 1931. With a coalition of right group activists coming into power in 1952, General Dawood Khan became the PM in 1954. The Grand assembly or Loya Jirga adopted the Constitution in 1964 which provided for a constitutional monarchy and bicameral legislature. Article 2 declared Islam as the state religion and mentioned that religious rites of the state be performed as per the Sunni Hanafi doctrine. Hence, other Muslim sects were in minorities. However, the same article mentioned that non-muslims shall be free to perform rituals within limits determined by laws of public peace and decency.

Soviet Invasion

In 1978, the communist party took over and introduced radical reforms, which was condemned by the UN. The US supposed Afghan rebels with a decade long war with the USSR, while India supported the Soviet invasion. The Soviet army withdrew in 1989 with the regime collapsing in 1992. Hence, till 1992 there was no religious persecution of minorities. It was in 1995., Islamic Taliban came into power while introducing regressive reforms. During their rule, even Muslims were persecuted. In December 2001, Hamid Karzai took over as the head of the interim Government, under whom the current Constitution was adopted.

The Afghanistan constitution begins with the praise of Allah and blessings of the Prophet and his followers. Unlike India’s Constitution, it makes a commitment to the UN charter as well as declaring of human rights, thus broadening the ambit of non-muslims rights. Article 35 of the Constitution prohibits the formation of any party of the basis of a religious sect. Article 149 provides for amendment for principles of Islam and Islamic republicanism. It says that fundamental rights can be an amendment to improve and enlarge guarantees and not to restrict them. In contrast to India, Pakistan and Bangladesh, Article 29 of the Afghan constitution uses the term persecution, but it forbids the abuse of human beings. Hence, the allegation of religious persecution in Afghanistan is not supposed by the constitution.
Only a Muslim citizen born to Afghan parents can become the President, in the case of India a naturalised citizens can become the President.

Citizenship

Article 8 of the 1992 law provides citizenship without any religious discrimination. The article gave citizenship just to males and was based on narrower provisions of just blood relationship. Article 12 says that if a child is born in Afghanistan and parents’ document shows that citizenship in not available, the child will be considered an Afghan. If India had adopted this rule, around two lac children would have been included in the Assam NRC.

After the inaction of the Soviets and subsequent connect, Afghanistan has seen the migration of millions.s In 2017, 1700 applications including that of Hindus and Sikhs were received. However, not every migration was due to religious persecution. Article 4 of the current Afghani Constitution declares that the Afghanistan nation is composed of individuals who possess Afghan citizenship. It says that no individual would be deprived of citizenship. As in case of Pakistan and Bangladesh, Afghanistan neither confers or denies citizenship which is based on religion.

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