Author: Riya Gautam, Dharma shastra National Law University, Jabalpur, M.P.
Abstract
The Citizenship (Amendment) Act, 2019 (CAA) is a seismic shift in India’s citizenship regime with the addition of religion as criteria of getting citizenship easily. This article critically analyzes the amended provision, its provisions, and constitutional implications. The CAA is a speedy route to Indian citizenship for non-Muslim Pakistani, Bangladeshi, and Afghan immigrants, thus excluding Muslims and attracting doubts about its consistency with Articles 14 and 15 of the Indian Constitution. The argument brings out the legal, secular, and moral issues raised by constitutional law experts, civil society, and international organizations and refers to the dangers of religious discrimination and disintegration of India’s secular ethos. It also criticizes the enhanced powers of the government to cancel Overseas Citizenship of India (OCI) status, commonly viewed as a means to silence dissent. The article maintains that the CAA erodes constitutional principles of equality and secularism and establishes a dangerous precedent for citizenship and minority rights in India.
Introduction
The citizenship (amendment) bill has been passed in Rajya Sabha on December 11, 2019 and received president assent on December 12, 2019. It marked a very significant impact in Indian citizenship act 1955 or all-over Indian citizenship regime. The central government has started the work by taking small steps towards the enactment and implementation of the law of the said amendment since 2015 itself. This legislation has led to a various legal and constitutional debate because of the religious criteria for granting the citizenship which is against the principle of equality and the secularity and People argued that this amendment is arbitrary and discriminatory because it is selectively excluding a certain community which violates article 14 and 15 of Constitution of India.
Historical Background
In 1947, when India and Pakistan got separated because of this migration occurred in large scale between India and Pakistan. Later when Pakistan and Bangladesh on 1971, got separated, the problem of migration was continuously increasing because of religious minorities was facing persecution.
There is provision under article 5 to 11 of the COI regarding citizenship. To regulate the citizenship in India the govt. came up with the Indian citizenship Act, 1955, it classified undocumented migrants as illegal but there were no any religious preferences.
After the partition the persecuted non-Muslims from Pakistan, Bangladesh, and Afghanistan started migrate to India seeking refuge.
Modi Govt. relaxed the immigration rules in 2015 for these persecuted migrants and first attempt was made through first citizenship amendment bill in July 2016 but later it was lapsed. Finally, the Citizenship amendment bill passed in December 2019 was passed and got assent from the president.
What does Citizenship (amendment) act, 2019 include?
This amendment in Indian Citizenship act, makes non- Muslim immigrant i.e., Hindus, Sikhs, Buddhists, Jains, Parsis, and Christian’s religions to get citizenship from the three Muslim-majority neighbors i.e., Pakistan, Bangladesh and Afghanistan if they escape from there parent country because of persecution.
Earlier, to get citizenship, person required to reside in India at least for 11 years of the previous 14 years but this amendment relaxes this requirement to., Hindus, Sikhs, Buddhists, Jains, Parsis, and Christian. It only requires to reside in India to 6 years From 11 years who had arrived in India before 31 December 2014.
There is certain exceptions in this act, it would not apply in certain tribal and protected areas:
Areas under the Sixth Schedule of the Constitution (like parts of Assam, Meghalaya, Tripura, and Mizoram)
Areas protected under the Inner Line Permit system (like Arunachal Pradesh, Mizoram, and Nagaland)
Critical analysis of recent citizenship amendment act, 2019
There are multiple views on this amendment, in favor as well as in opposition. Those who are favoring the law, said that it would prevent the persecution of the non-Muslim people in these three Islamic countries. Those who are opponent said that it is unconstitutional because it is against the secular nature of country and discriminatory based on the religion. There are also multiple constitutional and political debates are ongoing related to the validity of the amendment.
♦ THE CITIZENSHIP (AMENDMENT) ACT, 2019 AND ARTICLE 14.
Various critics argues that it violates the Article 14 of the constitution which guarantees the equal protection of law and equality before the law to all the person.
Historically, Indian citizenship is established through birth, descent, registration, and naturalisation under the Citizenship Act, 1955, whose validity is derived from Articles 5 to 9 of the Constitution. Present laws like the Foreigners Act and the Passport Act render illegal migrants ineligible for citizenship and liable to deportation or incarceration. The CAA modifies these provisions by making some non-Muslim illegal entrants qualify as legal migrants. But civil society, activists, and the opposition parties contend that the Act is discriminatory and violates the Constitution. They argue that by excluding Muslims, it forms an unequal legal system and is a bad precedent. In addition, they caution that the application of the law may be abused since individuals would misuse identity documents to qualify in the eligible categories.
♦ THE CITIZENSHIP (AMENDMENT) ACT, 2019 AND SECULARISM
Opponent also argues that it violates the secular principle of the constitution. According to them Faith cannot be the determining criteria of the citizenship.
Delhi-based lawyer Gautam Bhatia said that by dividing alleged migrants into Muslims and non-Muslims, the law “explicitly and blatantly seeks to enshrine religious discrimination into law, contrary to our long-standing, secular constitutional ethos”.
Historian Mukul Kesavan said the law is “couched in the language of refuge and seemingly directed at foreigners, but its main purpose is the delegitimization of Muslims’ citizenship”.
Critics say that if it is genuinely aimed at protecting minorities, the bill should have have included Muslim religious minorities who have faced persecution in their own countries – Ahmadis in Pakistan and Rohingyas in Myanmar, for example. (The government has gone to the Supreme Court seeking to deport Rohingya refugees from India.)
The 2019 Citizenship Act amendment has increased the powers of the Indian government to revoke Overseas Citizen of India (OCI) status. It introduced an ill-defined new basis—breaking any law in effect, including the Citizenship Act—for revocation. The sweeping language has led to fears that the government will use this as a means of attacking critics, such as journalists and scholars. Of the 102 OCI cards cancelled between 2014 and May 2023, among others, those of Aatish Taseer, Vanessa Dougnac, and Ashok Swain, were frequently cancelled for having aired critical views or joined protests.
There is various petitions have been filed to challenge the constitutionality of recent amendment.
The Citizenship (Amendment) Act, 2019 (CAA) remains under intense legal challenge, with more than 200 petitions, one of which is by the Indian Union Muslim League (IUML), questioning its constitutionality. The main contention is that the Act violates Articles 14 and 21 of the Constitution on grounds of discriminating on the basis of religion and denying equal protection of the law to like-minded persons, i.e., persecuted minorities from nations other than Afghanistan, Pakistan, and Bangladesh. The petitioners contend that the Act does not pass the Supreme Court’s “reasonable classification test” under R.K. Garg (1981), since its exclusionary criteria cannot be said to have a rational connection with its avowed objective of providing refuge to persecuted individuals. They have also questioned previous executive notifications and more recently a 2024 order delegating authority to district collectors to execute the Act. These events highlight the continued legal and constitutional controversy yet to come. In the case of Indian Union Muslim League v Union of India the constitutionality of the recent amendment in citizenship has been challenged before supreme court, final decision is yet to come.
Conclusion
The Citizenship (Amendment) Act, 2019 is a turning point in the constitutional and legal history of India. With the insertion of religion as a criterion for citizenship, the Act deviates from the secular and egalitarian foundations written into the Constitution. The omission of Muslims from consideration while bestowing fast-track citizenship on non-Muslims from targeted nations has caused extensive legal, political, and civil protests, charging discrimination and constitutional illegality under Articles 14, 15, and 21.
The larger implications of the Act—i.e., the increased powers to revoke OCI status—moreover support worries regarding the crumbling of dissent, civil liberties, and the persecution of minority groups. Opponents rightly worry that the particular and ambiguous provisions of the Act may set a precedent that citizenship itself becomes an instrument of political and religious exclusion.
With several petitions pending before the Supreme Court, such as the epoch-defining Indian Union Muslim League v. Union of India, the ultimate decision of the judiciary will go a long way in charting the future of Indian constitutionalism. Whether the Court upholds the constitutional bedrock of equality, secularism, and the rule of law or allows the State to deconstruct citizenship on religious grounds will go a long way in determining the democratic identity of India for generations to come.
FAQS
1. What is the Citizenship (Amendment) Act, 2019 (CAA)?
The CAA is a law passed by the Indian Parliament that provides a fast-track route to Indian citizenship for non-Muslim immigrants (Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians) from Pakistan, Bangladesh, and Afghanistan who faced religious persecution and entered India before 31 December 2014.
2. How does the CAA change the previous citizenship requirements?
Before the CAA, illegal immigrants were not eligible for Indian citizenship. Also, naturalization required 11 years of residence in India. The CAA reduces this to 6 years for eligible non-Muslim communities and reclassifies them as not illegal if they meet the criteria.
3. Why is the CAA controversial?
The CAA is controversial because it excludes Muslims from its provisions, leading to criticism that it violates Articles 14 (equality before the law) and 15 (non-discrimination on grounds of religion) of the Constitution. It also raises concerns about India’s secular character by linking religion with citizenship.
4. Does the CAA apply across all of India?
No. The CAA does not apply to certain tribal and protected areas:
Areas under the Sixth Schedule (parts of Assam, Meghalaya, Tripura, Mizoram)
Areas under the Inner Line Permit (Arunachal Pradesh, Mizoram, Nagaland)
5. How does the CAA relate to secularism in India?
Critics argue that the CAA violates the secular ethos of the Constitution. By legally distinguishing between Muslims and non-Muslims, it introduces religion as a basis for citizenship, which undermines the secular and egalitarian values enshrined in the Constitution.
6. Has the CAA been challenged in court?
Yes, the CAA is challenged, Over 200 petitions have been filed, including one by the Indian Union Muslim League (IUML), are pending before the Supreme Court, arguing that the Act violates Articles 14 and 21 and does not meet the “reasonable classification” test laid down in R.K. Garg (1981).
