AUTHOR NAME- KAUSTUBH VERMA
COLLAGE- UNIVERSITY OF PETROLEUM AND ENERGY STUDIES
INTRODUCTION
The recently enacted Citizenship (Amendment) Act, 2019 (CAA) has sparked significant political turmoil in India. While its stated purpose is to provide a compassionate route to Indian citizenship for certain minorities who escaped religious persecution in Pakistan, Bangladesh, or Afghanistan, it is widely perceived as a manoeuvre by the Hindu political right in India to disenfranchise Indian Muslims. The law’s passage was followed by some of the most extensive and well-publicized political protests in recent Indian history. In the northeastern regions, the opposition to the Act stems from fears that its implementation will lead to an influx of immigrants, potentially disrupting their demographic and linguistic distinctiveness. In other parts of India, such as Kerala, West Bengal, and Delhi, the protests centre on the exclusion of Muslims, arguing that this exclusion contradicts the Constitution’s principles.
Initially, the Citizenship Amendment Bill (CAB) was brought in the parliament by the Narendra Modi government during its 2nd term in the year 2016. The Lok Sabha passed the bill in January 2019, but the legislation lapsed with the end of its tenure in May. The revised CAB was then passed by both houses of Parliament in December. The Citizenship Act of 1955 has been amended five times before (1986, 1992, 2003, 2005, and 2015) – three times under Congress-led governments and twice under BJP-led governments. Describing The Citizenship (Amendment) Act, 2019 as highly controversial would not be an exaggeration, given the nationwide uproar it has caused. If the monsoon session of Parliament made history by abrogating the contentious Article 370 of the Constitution, which granted special status to the former state of Jammu & Kashmir, this winter session will be remembered for the equally controversial Citizenship Amendment Bill, which has now been enacted into law.
WHAT IS CITIZENSHIP AMENDMENT ACT?
The Citizenship (Amendment) Act, 2019 simplifies the process for non-Muslim immigrants from India’s three Muslim-majority neighbours—Pakistan, Bangladesh, and Afghanistan—to obtain Indian citizenship if they fled their home countries due to religious persecution. Individuals from Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities from these countries are eligible to become Indian citizens even if they lack the necessary documents. Furthermore, they will not face deportation for not having proper documentation. Previously, the Citizenship Act, 1955 required applicants to have lived in India for 11 of the previous 14 years. The amendment reduces this residency requirement to six years for individuals from these six religions who arrived in India before December 31, 2014.
THE CITIZENSHIP (AMENDMENT) ACT, 2019 AND ARTICLE14
Article 14 of the Indian Constitution provides equality before the law and equal protection of the law to all individuals and no discrimination should be done on the basis of caste , religion. The Citizenship Amendment Bill (CAB) proposes concessions for non-Muslim illegal migrants from Bangladesh, Pakistan, and Afghanistan to acquire citizenship. Although the Bill does not explicitly state it, it grants Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians who face religious persecution in these three countries the right to seek Indian citizenship, thereby excluding Muslims. Indian citizenship is based on birth, descent, registration, and naturalization, as outlined in the Citizenship Act of 1955, which derives its legitimacy from Articles 5-9 of the Constitution. Under current laws, illegal migrants cannot apply for citizenship through registration or naturalization. The Foreigners Act and the Passport Act prohibit such individuals from becoming Indian citizens and provide for their imprisonment or deportation.
The Citizenship Amendment Bill 2019 seeks to amend the Citizenship Act, the Passport Act, and the Foreigners Act. The Citizenship Amendment Act would override provisions that mandate the imprisonment and deportation of illegal migrants. Essentially, the Act grants legal status to non-Muslim illegal migrants, despite their lack of valid documents and permission, provided they left their countries due to religious persecution.
Opposition parties and many civil rights activists oppose the Bill, arguing it discriminates against Muslims and is unconstitutional under Article 14. Article 14 is a fundamental principle of the Constitution, stating, ” Within the borders of India, no one may be denied equality before the law or equal protection under the law by the State.” This clause requires the State to treat every person equally and to abstain from passing laws that discriminate against any group of people. Article 14 grants rights to “any person,” not just Indian nationals. As a result, activists and opposition parties charge that the BJP is singled out Muslims in order to further a “hidden agenda.”
Migrants or refugees from these countries can belong to any religion. Excluding Muslim refugees from the benefits of CAB 2019 would seemingly violate Article 14, as it provides equality to any person within India’s territory, including foreigners. The law’s implementation could have wide-ranging consequences, making it difficult to enforce, as anyone who has been in India for five years might manipulate their identity to claim citizenship.
THE CITIZENSHIP AMENDMENT ACT AND SECULARISM
Secularism was not originally included in the Indian Constitution. It was added to the preamble in 1976 during a national emergency declared by Prime Minister Indira Gandhi, a move considered somewhat disingenuous. The Supreme Court has since ruled that secularism is a fundamental part of the “basic structure” of the Indian Constitution and of “constitutional morality.”
By contemporary standards, the CAA is deemed unconstitutional because the conditions that prevailed during the period of India’s dominion ship, from August 1947 to January 1950—such as partition-era housing shortages and a communal atmosphere fuelled by millions of refugees—no longer exist today. The CAA is seen as discriminatory for various reasons, though not necessarily for the insidious, bad-faith reasons often attributed to the government in popular discussions.
THE UNSECULAR ORIGINS OF INDIANS CITIZENSHIP
THE PERMANENT RESETTLEMENT PERMIT:
Contrary to popular belief, the citizenship laws in India had an origin that was somewhat unsecular. When India became a republic, the citizenship provisions of the Constitution discriminated against Muslim immigrants, making it more difficult for them to obtain Indian citizenship compared to non-Muslim immigrants.
THE HIDDEN PREMISES OF CITIZENSHIP:
The Constitution initially outlined who would be a citizen of India at its commencement but did not define citizenship beyond that point. It was up to Parliament to enact a general law concerning citizenship later on. In the Constituent Assembly, the citizenship provisions of the Indian Constitution were based on two implicit assumptions. First, the majority of those who migrated to India from Pakistan before the introduction of the permit system on 19 July 1948 were non-Muslims, primarily Hindus and Sikhs. Second, those who were on the Indian side of the border at partition, migrated to Pakistan after 1 March 1947, and later returned to India to resettle permanently were Muslims. The Constitution treated these two groups differently.
THE RENUNCIATION ARGUMENT:
Alladi Krishnaswami Ayyar, during the Constituent Assembly debate on the citizenship provisions of the Constitution, stated, “We are committed to the principles of a secular State. We may distinguish between people who have voluntarily chosen another country as their home and those who wish to maintain their connection with this country. However, we cannot make distinctions on racial, religious, or other grounds between different groups of people.” Despite this assertion, Ayyar overlooked the implicit discrimination highlighted by Nehru—the inherent bias against Muslim migrants from Pakistan embedded in the citizenship provisions of the Indian Constitution. Although there was no explicit discrimination between Hindus and Muslims migrating from West Pakistan (the citizenship provisions did not mention religion), in practice, Muslims wishing to return to India faced greater difficulties compared to Hindus who wanted to move to India.
CAA IS DISCRIMINATORY
THE PATHS TO INDIAN CITIZENSHIP:
The Citizenship Act of 1955 outlines several routes to acquiring Indian citizenship: birth, descent, registration, naturalization, and the acquisition of foreign territory. Before an amendment in 2004, anyone born in India after January 26, 1950, was automatically considered an Indian citizen, even if one or both parents were illegal immigrants. Post-amendment, a person born in India between January 26, 1950, and July 1, 1987, remains an Indian citizen regardless of the immigration status of their parents. However, for those born between July 1, 1987, and December 3, 2004, citizenship is granted if at least one parent was an Indian citizen at the time of birth, even if the other was an illegal immigrant. For individuals born after December 3, 2004, citizenship is granted only if both parents are Indian citizens or if one parent is an Indian citizen and the other is not an illegal immigrant. This reflects a shift from jus soli (citizenship by birth) to jus sanguinis (citizenship by descent).
Citizenship by descent applies to those born outside India. A person born outside India after January 26, 1950, can be a citizen if either parent was a citizen at the time of their birth. Specific rules apply: for those born outside India between January 26, 1950, and December 10, 1992, citizenship is granted if the father was an Indian citizen at the time of birth. For those born on or after December 10, 1992, either parent can confer citizenship. The rules become more complex if the parents themselves acquired citizenship by descent. Since December 3, 2004, births must be registered at an Indian consulate within a specific timeframe for citizenship by descent to apply.
Generally, citizenship by registration is intended for people of Indian origin, the spouses or children of Indian citizens, and for a period, citizens of Commonwealth countries. Naturalization offers a path to citizenship for individuals with no ancestral connection to India. If India acquires foreign territory, the central government can designate individuals from that territory as Indian citizens. Importantly, due to the 2004 amendment, an “illegal migrant” is barred from obtaining citizenship through registration or naturalization. An “illegal migrant” is defined as a foreigner who entered India without valid travel documents. The CAA, however, creates an exception for certain religious minorities from Pakistan, Bangladesh, or Afghanistan who entered India before December 31, 2014, due to religious persecution, allowing them to obtain citizenship through registration or naturalization despite their illegal entry.
TRANSGENDERS AND ORPHANS:
When the Citizenship Act was enacted in 1955, it included a provision for citizenship by birth, stating that anyone born in India after January 26, 1950, would be considered an Indian citizen, regardless of their parents’ immigration status. This changed in 2004 when Parliament amended the Act, eliminating automatic citizenship by birth for those born after July 1, 1987. Individuals born after this date but before December 3, 2004, must prove that at least one parent was an Indian citizen. Those born after December 3, 2004, must demonstrate that both parents are Indian citizens or that one parent is an Indian citizen and the other is not an illegal migrant. This is particularly challenging for many, including members of the transgender community who are often abandoned at birth, making it difficult to prove their own or their parents’ birth in India. Orphans face similar challenges as they may not know their parents and thus cannot prove their own birth or their parents’ citizenship.
IS THERE AN NRC LINK?
There is no official link between the CAA and the National Register of Citizens (NRC). In Assam, the Citizenship Amendment Bill has raised concerns that it might be used to include the 1.9 million Hindus excluded from the NRC list. The NRC, supervised by the Supreme Court, was intended to identify illegal Bangladeshi immigrants (predominantly Muslims) in Assam. However, the final list excluded over 1.9 million Hindus, leading to speculation that the Citizenship Amendment Bill might be a way for these excluded Hindus to obtain citizenship. The government maintains that the Bill aims to address human rights issues for minority communities facing religious persecution in neighboring countries.
INTELIGIBLE DIFFERENTIA OF CAA
The doctrine of reasonable justification, known as “intelligible differentia,” refers to a discernible difference that can be comprehended. This principle dictates that laws must treat all individuals equally when they are in comparable situations. Consequently, Article 14 does not necessitate the universal application of laws to all individuals; rather, it demands similar treatment for individuals in similar circumstances. This allows for the reasonable classification of people for identification purposes. Under Article 14, the provision of equal protection of the law requires that any proposed classification, such as that found in the CAA, be tested for reasonableness.
Following the enactment of the CAA, nationals from Pakistan, Bangladesh, and Afghanistan are divided into two categories for the purpose of obtaining Indian citizenship: one group includes Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis, while the other group consists of Muslims. Each group is subject to different provisions under the Citizenship Act of 1955. The constitutional validity of this classification hinges on the acceptance of a reasonable justification, as articulated in the ‘Statement of Objects and Reasons’ of the CAA.
The CAA acknowledges the historical context of continuous migration between India and what are now Pakistan, Afghanistan, and Bangladesh, noting that many citizens of undivided India from various faiths resided in these regions at the time of India’s partition in 1947. The constitutions of Pakistan, Afghanistan, and Bangladesh designate a specific state religion, leading to the persecution of individuals from Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities. Many such individuals have sought refuge in India, remaining even if their travel documents have expired or if they lack documentation.
A counter-argument to the CAA questions why Shia and Ahmadiyya Muslims are excluded if the law aims to protect against religious persecution. The response is that the CAA is not a general law against religious persecution in these countries but rather addresses persecution stemming from the declaration of a state religion. The issues concerning Shia and Ahmadiyya Muslims are internal religious conflicts, and they can still apply for Indian citizenship under the relevant provisions of the Citizenship Act of 1955, without any restrictions.
The central argument of the CAA’s objective is that the declaration of Islam as the state religion in Pakistan, Bangladesh, and Afghanistan has divided their nationals into two groups: Muslims, and Hindus, Sikhs, Jains, Parsis, Buddhists, and Christians. If this argument is accepted, it could reasonably justify India treating these two groups differently. This rationale might be sufficient for the Supreme Court to uphold the CAA’s constitutional validity.
The CAA faces criticism for excluding Muslims, but this exclusion is based on a reasonable reclassification. Given the extent of injustice involved, the Supreme Court might be inclined to uphold this classification as it appears to be reasonable.
CONCLUSION
Union Home Minister Amit Shah has frequently argued compellingly in his interviews that India cannot turn away individuals who have suffered persecution at the hands of religious extremists. He justified the exclusion of Muslim migrants from Bangladesh, Pakistan, and Afghanistan by stating that Muslims are unlikely to face religious persecution in countries where they constitute the majority.
FAQ REGARDING CITIZENSHIP AMENDMENT ACT
- What is CAA?
The Citizenship Amendment Act (CAA) is a legislative measure designed to provide citizenship to refugees belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities from Afghanistan, Bangladesh, or Pakistan who entered India without valid travel documents, like passports, on or before December 31, 2014. These refugees can apply for citizenship and, if they meet specific conditions, can become naturalized citizens of India.
- What is the application process under CAA?
The Citizenship Amendment Act (CAA) application process is outlined under Section 6B of the Citizenship Act, 1955. It has been streamlined to an online format, accessible through the CAA-2019 mobile app or the web portal: https://indiancitizenshiponline.nic.in. Applicants must complete an application form, upload necessary documents, and pay a fee of Rs 50.
- Who is eligible to apply for citizenship under CAA?
The CAA specifically targets Hindu, Sikh, Jain, Buddhist, Parsi, and Christian individuals who fled from Pakistan, Bangladesh, or Afghanistan to India before December 31, 2014, because of religious persecution.
- Does the CAA affect any Indian citizen?
No, the Citizenship Amendment Act (CAA) does not impact Indian citizens.
- What are the documents required to apply for citizenship under CAA?
Applicants must prove their country of origin, religion, date of entry into India, and knowledge of an Indian language.
Country of Origin:
While the need for a valid passport and Residential Permit of India from the respective countries is waived, applicants can submit various documents such as birth certificates, educational certificates, and identity documents issued by their home countries.
Date of Entry into India:
To verify their date of entry into India, applicants can use a variety of documents, including visas, immigration stamps, driving licenses, Aadhaar cards, ration cards, government-issued IDs, employment records, utility bills, and school certificates from India.
