Introduction
At present, the citizenship Amendment Act (CAA), 2019 that got passed on December 12, 2019, has become the center of much public discussion. The bill is to insert new clauses into the Citizenship Act of 1955 that aims at granting citizenship to persecuted minorities from the neighboring countries, namely Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan. However, the exclusion of Muslims in this regard has sparked various controversies about discrimination in law in addition to violation of secularism in India.
The CAA has been met with protests, petitions and legal challenges as many call it a violation of the Indian constitution with regards the provisions on equality and secularity of the state. Since it is on the radar of the apex court, as SC is soon going to hear petitions against the CAA, it is high time to debate and analyze the provisions of such laws in the context of India’s citizenship regime, secularism, and the rights of the persecuted minorities.
This article also discusses the legal and philosophical analysis of the constitutional ability of the CAA with reference to the challenges that have been raised against it. In this article, an attempt has been made to discuss the provisions of the Act, historical background of the Act, arguments about its constitutional validity and, thereby, to indicate how the CAA affects the ‘democracy’ and the ‘secularism’ in India.
Background
The (CAA) has its origin from India independence followed by the partition of India and the mass movement of people across the newly created borders. The history of CAA thus exists in the context of oppression of religious minorities in Pakistan, Bangladesh and Afghanistan hence many had to seek refuge in India.
The government of India in 2015 proposed the Citizenship (Amendment) Bill with intent of accustoming Citizenship to persecuted minorities. But the Bill failed to materialize to the desired form mainly because of opposition from different stands. The government again introduced the Bill in 2019 that was passed by the Parliament on the 11th of December 2019 and which was given the presidential assent on 12th of December 2019.
Key Provisions of the Act are:
1. Amendment to Section 2(1)(b) of the Citizenship Act, 1955: Changes meaning of the term ‘illegal migrant’ of people originating from Afghanistan, Bangladesh and Pakistan but belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian religion.
2. Insertion of Section 6B: It also proposes for naturalization by persons from the aforementioned communities be done within the first five years in the country as opposed to the 11 years as proposed by the current immigration laws.
3. Exclusion of Muslim: This infuriated Muslims because the Act was designed in such a manner that specifically rejected any of the benefits for the Muslims.
Implications of CAA:
1. Fast-tracked citizenship: CAA enables non-Muslims to claim citizenship in India easily and quickly making the demographic status of India change.
2. Exclusion of Muslims: Ban on Muslims in the implementation of the Act has attracted arguments on discrimination whereby Muslims may further be locked out of any chance in the country.
3. Impact on Assam and Northeast India: Despite the numerous promises CAA has brought in apprehensions of demographic change in Assam and rest of Northeast India which cause massive protests.
4. Constitutional concerns: CAA has been contested under Indian Constitution’s Article 14 (equality), Article 21 (life and liberty), and Article 25 (freedom of religion).
The CAA has garnered a lot of controversy where some people advocate it acts as a safe haven to persecuted minorities while others consider it against India’s secularism, a form of discrimination against Muslims.
Challenges to CAA’s Constitutionality
A. Religious discrimination (Article 14(a))
– CAA denies Muslims the full enjoyment of the rights therein conferred on other people on the basis of their religious preference thereby engaging in discrimination.
– Article 14: The equality code and the non-discrimination code: The state does not discriminate based on religion, race, caste, sex or place of birth.
– Based on the above analysis, no temptation of distinction can justify the exclusion of Muslims as enshrined by CAA since this defies the principle of equality.
B. Violation of secularism (Lack of compliance to the Indian secularism):
– Muslims’ exclusion by CAA is against the provisions of secularism in India, on the basis of which all religions are treated equally.
– Indian Constitution guarantees one’s right to freedom of religion and equality of all persons irrespective of their religion.
– First, the provisions of CAA hurt the secular structure of India and second, class citizenship based on religion is established.
C. Violation of Article 5 as the result of the conflict with the definition of citizenship:
– CAA’s definition of citizenship is in apron with Article 5 that defines citizenship by birth, descent, and registration.
– CAA post a new form of citizenship category that is religious, but this is not termed in the Article 5.
– This state of affairs leads to confusion and brings into question the basis of citizenship which has been well laid down.
D. Ultra vires (Exceeding of the parliamentary power in terms of Article 11):
– CAA is much more than parliamentary authority because it creates a new precondition for citizenship (religion) without changing Article 5.
– The conflict of powers clause is worked out in Article 11 where the ability of the parliament to legislate on citizenship, naturalization and aliens is restrained.
– Thus, by introducing a new basis for citizenship without changing the text of the Article 5, CAA exceeds the limitation proposed by Article 11.
These issues raise the constitutional questions with regard to CAA and highlight the need for the judiciary to intervene in order to establish whether the legislation is constitutional or not in the light of India’s constitution and values.
Government’s Clarifications and Responses
The proponents of CAA claim that the act does not violate the Indian constitution and it is in fact required to offer protection to persecuted minorities. They contend that:
- Permissible classification: CAA’s approach in categorizing the persecuted minorities by religion is okay under Article 14 since it seeks to protect those in peril.
- Protection of persecuted minorities: CAA gives asylum to persecuted non-Muslims minorities in Afghanistan, Bangladesh, and Pakistan; a policy England and other European countries should learn from the ancient Indian tradition of giving shelter to minorities.
- Historical context: The enactment of CAA is due to atrocities that were committed against non-Muslim minorities of the Indian subcontinent during the division of India and Pakistan.
- Parliamentary sovereignty: Parliament has the right to modify the citizenship rules according to the Article 11, thus, the CAA is found in terms of this legislative right.
- National register of citizens (NRC): CAA and NRC exercises are two different things and one should not confuse between the two and in CAA, no Indian citizen will be denied citizenship.
Critics have criticized CAA for discriminating Muslims however, the supporters of the act have said that CAA is not discriminative against Muslims but a passaging of citizenship to the minorities who have been oppressed in the region. They stress that CAA is a secular not religious measure, and while supporting the arguments of those who said that such a law keeps in tune with India’s secularism by defending minorities.
Moreover, for the supporters CAA encounters other arguments rooted in the belief that the Parliament has absolute rights to amend the citizenship laws under Article 11 and therefore is perfectly legal. Some of them contended that the judiciary has no jurisdiction to impute on Parliamentary legislative powers, more so on issues of national concern such as citizenship.
Court Proceedings
CAA has been contested in most of the courts in India and right from the supreme court of India to all the high courts have entertained petition against the constitutional validity of the CAA.
Supreme Court
– There are several writs before the Supreme Court challenging the viabilities of CAA wherein Articles 14, 21 & 25 have been alleged to have been offended.
– The Apex court also accepted the petitions and ordered the government to reply and respond to the allegations.
– The outcome of the Supreme Court’s verdict will decide the future of CAA the extent to which the Indian citizenship, secularism is at stake.
– If the Supreme Court affirms itself on CAA, this then substantiates the government’s act of giving a fast track to citizenship to non-Muslims but if the Supreme Court quashes CAA, it would be a major setback to government’s legislative power and destabilization of political and society.
High Courts
– Delhi High Court, Kerala High Court and Gujarat High Court are among the High Courts that have issued notices to the government in relation to CAA petitions.
– The High Courts have asked the responses about the challenges which claimed that the CAA is unconstitutional and discriminates against Muslims.
– The decisions delivered by the High Courts shall play a decisive role in forming the legal contention related with the CAA and can cast an influence on the Supreme Court also.
It is evident from the courts’ proceedings that CAA is under much legal pressure and different courts are analyzing its constitutionality and impact. The consequence of these proceedings can potentially transform the citizenship law of India, secularism and the rights of minorities and other excluded populations.
Case Laws
Here are some notable cases related to the Citizenship Amendment Act (CAA):
1. Serajuddin v. Union of India (2020): A writ petition in Supreme court claiming violation of Articles 14, 21 and 25 with respect to CAA was filed.
2. Indian Union Muslim League v. Union of India (2020): The High court of Kerala has served a notice to the government in light of petition that was filed against the Constitutionality of CAA.
3. Association for Protection of Civil Rights v. Union of India (2020): Gujarat High Court brought a notice for the government after the hearing of a petition against the constitutional validity of CAA.
4. Najrana v. Union of India (2020): The Supreme court recently turned down a petition seeking to have CAA dissolved basing its decision on the fact that the petitioner has no legal right to be heard.
5. Sikhs for Justice v. Union of India (2020): The Supreme Court also came up with a notice to the government after a petition against the constitutionality of CAA was filed.
Such cases illustrate the continuous court actions against the constitutionality of CAA, and the different courts in assessing its effects.
Conclusion
Concisely, the Citizenship Amendment Act (CAA) has received much reaction and it has been applauded that helps the persecuted minorities but feared violating India’s secularism structure and discriminating Muslim sections. The debates on the constitutionality of CAA and sending it back to the parliament again bring into ascending image with different views and concerns such as the principle parliamentary supremacy by CAA’s supporters and violation of secularism by its opponents.
Thus, legal controversy over pass ability of CAA proves the appropriateness of the judicial role in deciding this issue. In view of this, even after the resolution of the Shaheen Bagh issue, the decision of the Supreme Court will define the future of the CAA along with the impact that it will have on the legislation on citizenship and secularism in the country. The judiciary has to verify that the mentioned legislation does not violate the constitutional foundation of India and the rights of the vulnerable populations.
CAA has important legal ramifications for India’s citizenship regime and for the question of secularism. If left unanswered the problem that represented by CAA will worsen the position of Muslims in India and further erode the principle of secularism. However, the emphasis that the legislation places on religious identity may open a ‘Pandora’s box,’ whereby citizenship is gradually becoming linked to one’s religion rather than the Constitution.
In the light of these challenges, it is necessary to remind Indians about the secularism and protection of rights of all citizens without discrimination of their religion. This means that judiciary, civil society, citizens have to collectively strive to make the policies regarding Indian citizenship consistent with the spirit of Indian constitution and do away with discriminations based on any arbitrary factors.
In conclusion, the CAA episode is a significant warning that in a multiculturally pluralist and multicultural modem society such as India, the struggle for defining one’s identity continues, and the search for a harmonious balance of all the rights and freedoms of a person is endless. As the country grapples with these issues, there is need to embrace the constitutionalism, minority accountability and strictly observe the secularism of the country.
