The Citizenship Amendment Act (CAA), 2019 makes it easier for non-Muslim migrants from three countries to get Indian citizenship. This series has previously looked at the Constitutions of Pakistan and Bangladesh. The third country is Afghanistan:
In a long history of conflict and multiple invasions, no empire or nation could control Afghanistan for long. Even the British, in spite of three wars since 1839, could not keep Afghanistan under their control and were defeated in the third of these wars in 1919. Afghanistan was not part of British India and was not partitioned from India, which was cited among the reasons for enacting CAA. Under the Treaty of Rawalpindi, Afghanistan got independence in 1919. Simultaneously, a treaty of friendship was signed with Russia.
King Amanullah got a Constitution for Afghanistan in 1921 and again in 1923 but the Tajiks removed him in 1929. A new Constitution was enacted in 1931. A coalition of rightist groups came to power in 1952 and General Dawood Khan became PM in 1954.
A new Constitution was adopted in 1964 by the Grand Assembly, or Loya Jirga. Signed by King Zahir Shah, it provided for a constitutional monarchy and a bicameral legislature. Sovereignty was vested in the nation, not Allah. Article 2 declared Islam the state religion and, unlike Pakistan and Bangladesh, mentioned that religious rites of the state shall be performed as per the Sunni Hanafi doctrine. Thus, other Muslim sects were in a way minorities. But the same Article also said non-Muslims shall be free to perform their rituals within limits determined by the laws for public decency and public peace.
Title Three of the Constitution talked about Rights and Duties (in India, Fundamental Duties were inserted in 1976). The first Article declared the people of Afghanistan, without discrimination or preference, have equal rights and obligations before law. Right to liberty under Article 26 was said to have no limitations except liberty of others and public interest. It said the state has a duty to protect liberty and dignity of every human being. The Constitution did not mention freedom of religion of Muslims or others.
In a coup in 1978, the Communist Party took over power and introduced radical reforms. The United Nations condemned the invasion and the US supported the Afghan rebels in a decade-long war with the USSR. India supported the Soviet invasion. Eventually the Soviet army withdrew in 1989 and Soviet Union-backed government collapsed in 1992. Thus until 1992, under the communist regime, no religious persecution of minorities could be alleged.
In 1995, the Islamic militia Taliban came to power and introduced regressive restrictions on female education and dated Islamic law and punishments. In 2001, they destroyed Buddhist statues in Bamiyan. During their six-year rule, even Muslims were persecuted. On December 22, 2001, Hamid Karzai took over as head of an interim government. The current Constitution was adopted and ratified in January 2004.
Religion & minority rights
Unlike the Pakistan and Bangladesh Constitutions, the Afghanistan Constitution begins with praise of Allah and also blessings for the last Prophet and his followers. The Preamble makes a categorical statement that Afghanistan belongs to all its tribes and peoples. Unlike the Indian Constitution, it mentions its commitment to the United Nations Charter as well as Universal Declaration of Human Rights and thus broadens the ambit of non-Muslims’ rights and non-discrimination.
While it declares Islam the state religion, Article 2 says followers of other religions shall be free within the bounds of law in exercise and performance of their religious rituals. Article 3 is problematic as it lays down that no law shall contravene tenets and provisions of Islam. Unlike Pakistan, sovereignty here (under Article 4) rests with the people, not Allah. Article 35 prohibits formation of any party on the basis of religious sectarianism in addition to tribalism, parochialism and language. Article 80 prohibits ministers on tour from using their position for religious purposes. Article 149 prohibits amendment of principles of Islam and Islamic republicanism. It says fundamental rights can be amended only to improve and enlarge guarantees, not to diminish or restrict them.
The First Fundamental Right under Article 22 prohibits any discrimination and distinction between citizens and states that all citizens have equal rights and duties. India has given right to equality even to non-citizens. Article 57 of the Afghanistan Constitution does say foreigners will have rights and liberties in accordance with the law.
Unlike in India, Pakistan and Bangladesh, Article 29 of the Afghanistan Constitution specifically uses the term “persecution”. It forbids persecution of human beings. Thus the allegation of religious persecution in Afghanistan is not supported by the text of the Constitution; in practice, except during the short regime of the Taliban, no such case is made out. Unlike in India (only the SC, ST & OBC Commissions have constitutional status), Article 58 gives constitutional status to the independent Human Rights Commission.
Only a Muslim citizen born to Afghan parents can become President (in India, a naturalised citizen can become President) but the Afghanistan Chief Justice, judges and ministers can be naturalised citizens.
The original 1922 citizenship law of Afghanistan was handwritten. Article 8 of the 1923 Constitution gave citizenship to all residents without religious discrimination. The main purpose was not citizenship but issuance of tazkira, or national identity cards. In India too, the National Register of Indian Citizens (NRIC) concept came with National Identity Card Rules, 2003. Afghanistan’s Article 8 gave citizenship just to males and was based on the narrower principle of jus sanguinis or blood relationship. But on November 7, 1936, a new citizenship law was made and, as per the 1930 Hague Convention on Nationality, jus soli or citizenship by birth was adopted. Article 2 said all children born to Afghan parents inside the country or abroad will be Afghan citizens.
The Indian Constitution and original Citizenship Act too was based on jus soli but the 1986 and 2003 amendments have now adopted jus sanguinis; for children born after December 31, 2003, both parents should be Indian citizens. Any foreigner who had resided for five years in Afghanistan could get Afghan citizenship. Following the “dependent principle”, any woman who married a foreigner lost citizenship but could get it back if her marriage subsequently ended in divorce. Non-Afghan women married to Afghan men were given citizenship.
The communist regime brought a few changes. On May 5, 1986, citizenship was defined as the legal and political relationship between a national and the state of Democratic Republic of Afghanistan. India does not define citizenship. For the first time in Afghanistan, dual citizenship was abolished. The “independent principle” was adopted in respect of married women.
In 1979, citizenship of the king was withdrawn for supporting alien powers; it was restored in 1992 by the new government. A new law of the Republic of Afghanistan came into force on March 15, 1992 but there was no major change except that renunciation of citizenship now required parliamentary approval and presidential assent. This law was replaced on June 11, 2000 by the Islamic Emirate of Afghanistan, without any substantive change. Under Article 28, an Afghan woman now retains her citizenship in spite of marrying a foreigner. Under Article 9(2), a child born in Afghanistan or outside to Afghan parents is a citizen. Even a child born in Afghanistan to foreigners can get citizenship on attaining age 18, if he decides to stay there, and if, within six more months, he does not apply for the same citizenship as his parents. In 2001, dual nationality was again accepted.
Article 12 says that if a child is born in Afghanistan and parents’ documents show that evidence of their citizenship is not available, the child will be considered an Afghan. Had India adopted this rule, 2 lakh children would have got included in the Assam NRC. In accordance with the UN Convention on the Rights of Stateless Persons, 1954, all stateless persons are considered Afghan citizens. Citizenship by naturalisation is given to anyone who has resided there for five years.
After the Soviet invasion and subsequent conflict, Afghanistan has seen out-migration of millions. In 2017, 1,773 applications of renunciation including of Hindus and Sikhs were received. Not every migration was due to religious persecution or well-founded fears.
Article 4 of the current Constitution declares that the Afghanistan nation is composed of all individuals who possess Afghan citizenship and the word Afghan shall apply to every citizen. In a bold and categorical statement, it says no individual shall be deprived of citizenship. Article 28 mentions it as a Fundamental Right and states no Afghan citizen shall be deprived of citizenship or sentenced to domestic or foreign exile. Like Pakistan and Bangladesh, Afghanistan neither confers nor denies citizenship on the basis of religion.
The author is an expert in constitutional law and Vice Chancellor, NALSAR University of Law, Hyderabad
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