Abstract
‘CAA- the Citizenship Amendment Act, 2019’ is the recent legislation which is a boon for minorities. In a nation like India which has an approximate population of 133.92 crores, it is difficult to have a consensus of perspective regarding any subject matter. That is exactly what’s happening on account of the Citizenship Amendment Act, 2019. Misinterpretation of this Act has created upheaval in the country nowadays. All we can see is that the nation is divided into two groups one is for and another is against the CAA. The beauty of democracy lies in the freedom which it gives to the citizens to speak for their rights and express their views on any subject. One such privilege is the right to protest which has now taken a terrible form muddling the peace of the country. A protest must be raised against the wrong but what if the Act is for the betterment of the minorities. This article illuminates the constitutional aspect of the Citizenship Amendment Act, 2019 and aims to clear the myths regarding the same. It also attempts to interpret the Act in the manner it has been intended to. Moreover, this article makes a clear distinction between CAA, NRC and NPR.
Keywords: The Citizenship (Amendment) Act 2019, The Citizenship Act 1955, Constitution, secularism, minorities, persecution, NRC, NPR.
I. Introduction
India has always been a humanitarian country and values humanity more than anything. Carrying forward the ideals and principles of the country, the Citizenship Amendment Act, 2019 (hereinafter referred to as CAA) was brought into the picture with a thirst to extend a helping hand to the millions of people living under the torture of hell. The Act provides respect, identity and rights to minorities. Although India has not ratified the Refugee Convention yet, it is still fulfilling the obligation under the Refugee Convention. Just like a coin has two sides, this Act also has its pros and cons. But the irony is that the Citizenship Amendment Act, 2019 has acquired a greater degree of disorder and havoc in the society when it has nothing to do with the Indian citizens. This article analyzes the Citizenship Amendment Act, 2019 exclusively on constitutional grounds taking into consideration the myths and arguments raised against it.
II. An Outline of the Citizenship Act, 1955
Before explicating the Citizenship Amendment Act, 2019, it is pertinent to throw some light on the original Citizenship Act of 1955. Under the shelter of the power enshrined under Article 11[1], the Parliament enacted the Indian nationality law which came to be known as the Citizenship Act, 1955. The Act of 1955 includes provisions dealing with the acquisition of citizenship, overseas citizenship, termination of Indian citizenship, etc. This Act of 1955 incorporates the following four mechanisms by which a person can acquire citizenship of India:
- Citizenship by birth[2]
- Citizenship by descent[3]
- Citizenship by registration[4]
- Citizenship by naturalization[5]
III. A Glance at the Citizenship (Amendment) Act, 2019
Eventually, the Citizenship Act, 1955 has been amended several times in 1986, 1992, 2003, 2005, 2015 and 2019. The Citizenship Amendment Act, 2019 is a legislation passed by the Parliament to amend the principal act i.e. The Citizenship Act, 1955. The Act is not applicable in the tribal areas of Assam, Tripura and Meghalaya and areas regulated through Inner Line Permit which includes Arunachal Pradesh, Mizoram, Manipur and Nagaland. The following are the major amendments made in the Citizenship Amendment Act, 2019:
- Firstly, it alters Section 2(1)(b) of the principal act of 1955 by inserting a proviso to it which says that:- “any person who belongs to Hindu, Sikh, Jain, Buddhist, Parsi or Christian community from Pakistan, Afghanistan or Bangladesh, who entered into India on or before 31st December 2014 shall not be treated as ‘illegal migrant’.”[6]
- Secondly, it incorporates clause (da) to Section-7D which provides for cancellation of the Overseas Citizen of India (OCI) registration if the OCI cardholder violates any provision of the Citizenship Act or any other law.[7]
- Thirdly, it adds a proviso in clause (d) of the Third Schedule which has relaxed the standard eligibility requirements for naturalization for these migrants from 12 years to 6 years.[8]
The primary objective of this Act is to protect the minorities who have confronted religious persecution at the hands of the theocratic neighbouring nations. The focus is on the three neighbouring Islamic countries i.e. Pakistan, Bangladesh, Afghanistan and six declared minorities in these countries i.e. Hindu, Sikh, Buddhist, Jain, Parsi and Christians.
IV. Does CAA Adhere to the Constitution?
The Citizenship Amendment Act, 2019 is in incredible debates and discussions since it has been passed by both the Houses of the Parliament and signed by the President. In India, the Constitution is the supreme law of the land and hence, the validity of any legislation is determined totally on the constitutional grounds and not on the political, moral or social viewpoint. Therefore, it is necessary to examine the Amendment Act, 2019 from the constitutional dimensions.
1. CAA and Article 14
Article 14 says that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[9]
Issue: The Citizenship Amendment Act, 2019 as per Article 14 violates the notion of equality because the Act is arbitrary and discriminatory against the Muslims and denies them equality of citizenship before the law.
Tracing the judicial precedents, the courts have upheld the constitutionality of numerous legislations containing discriminatory provision where the discrimination is based on a reasonable basis. The classical test as articulated by the judiciary comprises of the fulfilment of the following two conditions:
- The classification must be based on ‘intelligible differentia’ which differentiates those that are grouped than others.
- The classification must have nexus with the object of the Act which is sought to be achieved.
In our understanding of the constitution, the Citizenship Amendment Act, 2019 creates a reasonable classification because it satisfies the two requisites of the test of Article 14. The Act gives a path of citizenship to six declared minorities who suffered religious persecution in the three neighbouring Islamic countries which constitutes a clear classification based on the ‘intelligible differentia’. The core object of the Act is to deal with the discrimination of the minorities as they are in the three neighbouring countries which have nexus with the classification. Therefore, it passes the test of Article 14.
There is a point of contradiction that if the Act is meant to benefit the minorities, then why certain minorities like Ahamadiyas, Hazaras, Rohingyas etc. who have been victims of persecution are precluded. It is pertinent to mention here that persecution can be on account of political, religious, social or ethnic beliefs. The Amendment Act, 2019 recognizes only one form of persecution and that is the religious persecution in the three mentioned countries. It is not incumbent upon India to take note of all the other forms of persecution and ultimately, it is the policy matter which has nothing to do with the constitution.
Moreover, considering the argument that the object of the Act should have been wider and cover problems of Sri Lanka, Myanmar, China etc. is not at all relevant if we are testing it purely on constitutional grounds. How much a nation wants to relax its migration law is a pure matter of policy. Article 14 is not to second-guess the policies of the Parliament and the wisdom of the legislation.
2. CAA and Article 15
Article 15 prohibits discrimination against any citizen based on religion, race, caste, sex or place of birth.[10]
Issue: The Citizenship Amendment Act, 2019 singles out some communities for granting citizenship, therefore, violates Article 15.
If we pay attention to the very first line of Article 15, it is a fundamental right given to the citizens only. Therefore, Article 15 comes into the picture once after a person becomes a citizen of India and not before that.
3. CAA and Article 21
Article 21 guarantees the right to life and personal liberty to everyone irrespective of whether a person is a citizen of India or not.[11]
Issue: The Citizenship Amendment Act, 2019 deprives the right to life and personal liberty of the Muslim immigrants by excluding them from the ambit of this Act.
There is a fallacy about the Amendment Act, 2019 that it excludes the Muslims from its ambit which signifies that they are not welcomed in India. The principal act of 1955 as it stands, exclude everybody but through the Amendment Act, 2019, a window is opened for the minorities in those three countries. It is completely wrong to say that this Act of 2019 deprives the right to life and personal liberty of the Muslims immigrants. In this way, the Act of 1955 and 2019 deprive the rights of not only the Muslims but all other people who are not eligible to take citizenship in India and so, with this logic the whole Citizenship Act should be struck down, allowing everyone to enter and reside in India. Is it so that India should not have any citizenship law? This irrational argument has no stand in practicality and constitutionality. Therefore, the foreign Muslims and any other person who desire to migrate to India can apply by the general procedure as given under the principal Act of 1955 and the doors of India are always open for them.
4. CAA and Article 25
Article 25 grants freedom of conscience, and free profession, practice and propagation of religion to all persons.[12]
Issue: By excluding the Muslims from the Citizenship Amendment Act, 2019, it infringes on the right to practice, profess and propagate their religion.
Again, we would like to emphasize that the Citizenship Amendment Act, 2019 is opening a path of citizenship on a very narrow ground i.e. religious persecution. So, it has nothing to do with preventing someone from professing, practising and propagating their religion. Everyone is free to practice, profess and propagate their religion. Therefore, in our opinion, Article 25 has no role to play in the Citizenship Amendment Act, 2019.
5. CAA and Secularism
Issue: CAA lays the bedrock for a barbaric assault on secularism.
Secularism itself is a negative concept which means not favouring any religion. Since its contours are not precisely defined; therefore there are no precise formulations as far as secularism is concerned. Rather not allowing anybody to get citizenship than to allow minorities of the three countries to get citizenship does not seem to violate the notion of secularism. The law is being amended to say that minorities will be exempted. What must be examined is whether the exemption is reasonable or not. The question of secularism does not even arise.
V. CAA, NRC and NPR: Perplexity and Nexus
A theory is being put forward by many people that this Act is meant to segregate when looked through the prism of NRC will end up driving a wedge between the Hindu and the Muslim community. This is a myth which is being propagated among the citizens. NRC which stands for National Register of Citizens is a separate exercise to identify the illegal immigrants across the country for which the rules and regulations are yet to be decided. NPR which stands for National Population Register is just a database of all citizens residing in the country. There is a form containing approx. 16 parameters which are to be filled and it has been clarified that no document will be asked. So, there is absolutely no need for any sort of panic as far as these exercises are concerned because CAA, NRC and NPR are all different from one another.
VI. Conclusion
It can be concluded that the idea of the Citizenship Amendment Act, 2019 is to relax the migration and citizenship law and not to create any ban on migration or citizenship. A fake anti-muslim narrative is attached to this Act. Massive protests are being carried out against this Amendment Act, 2019 in almost every part of India which are taking a terrible form of violence. It is important to clarify that any kind of violence taking shelter under the name of protest is polluting the democracy and is unendurable. Moreover, there is a contention that India should be more liberal, generous, magnanimous and large-hearted while granting citizenship. We do not subscribe to this argument at all. There is one school of thought who says that this is an open and shut case as this Act is unconstitutional and will not stand a day in court. We respectfully disagree with this thought and in our opinion, this act will stand the legal scrutiny and rest is the decision of the Hon’ble Supreme Court of India which will be consciously acknowledged by everyone.
[1]INDIA CONST. art. 11.
[2]The Citizenship Act, 1955, No. 57, Acts of Parliament, 1955, s. 3.
[3]The Citizenship Act, 1955, No. 57, Acts of Parliament, 1955, s. 4.
[4]The Citizenship Act, 1955, No. 57, Acts of Parliament, 1955, s. 5.
[5]The Citizenship Act, 1955, No. 57, Acts of Parliament, 1955, s. 6.
[6]The Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019 (India), s. 2(1) (b).
[7]The Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019 (India), s. 7D (da).
[8]The Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019 (India), schedule 3 clause (d).
[9]INDIA CONST. art. 14.
[10]INDIA CONST. art. 15.
[11]INDIA CONST. art. 21.
[12]INDIA CONST. art. 25.
