The Legality and Implications of the Citizenship Amendment Act, 2019

Name- Simran Bains
Course and Year- B.COM.LLB(Hons) 3rd year
Department- University Institute of Legal Studies, Panjab University, Chandigarh

The Legality and Implications of the Citizenship Amendment Act, 2019

Abstract

The Citizenship Act provides the procedure to acquire Indian Citizenship. It also tells who is an Indian Citizen and who is restricted to get citizenship. “The Citizenship Amendment Act, 2019” is among the most disputed amendments ever in India. CAA provides citizenship to illegal immigrants who came to India before 31st December 2014 and belong to any of six communities i.e. Hindus, Jains, Sikhs, Parsis, Buddhists, and Christians. Citizenship will be provided to migrants from three countries i.e. “Pakistan, Afghanistan, and Bangladesh.” It reduces the naturalization span from 11 years to 5 years. The act aims to provide relief to illegal immigrants who face a lot of discrimination and problems in their life. The amendment act also provides that all the legal proceedings against such illegal immigrants who have come into India before the date: of 31st December 2014 shall be closed. The amendment aims to give an alternative method of obtaining Indian citizenship to existing methods which include – “birth[1], registration[2], naturalization[3], descent[4], and the integration of foreign land into the Indian Territory[5]”. After the passing of the bill it gave rise to predominant protests in numerous areas of the country on the other side, many people supported it. From protests to rallies, the controversy was expanding and the whole country was in disruption.

Keywords

Citizenship Amendment Act 2019, CAA, persecution, Article 14, Article 21, Minorities, Naturalization, Six communities, 31st December 2014.

Introduction

“Law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which could make every single judge a legislator, and introduce most infinite confusion.”- William Blackstone[6]. On 11th December 2019, the Indian parliament passed the Citizenship (Amendment) Act 2019[7]. On 12th December 2019, it received presidential assent.

The bill passed aimed to amend the Indian Citizenship Act, of 1955. It changed the status of illegal migrants to Indian citizens of the six communities that are Hindus, Sikhs, Parsis, Christians, Buddhists, and Jains migrated from three countries that are Afghanistan, Pakistan, and Bangladesh.

The amendment changed the meaning of illegal immigrants and stated that “Before 31st December 2014 any people who have came to India from Pakistan, Afghanistan, and Bangladesh in any way and they belong to these six communities—Hindus, Sikhs, Buddhists, Jains, Parsis and Christians so, now these people will not be called as illegal immigrants.

” The bill changes the process and states that if you have come from these three countries and belong to these six communities then they are required to live in India for five years and they will get Indian citizenship.

Many people favored the amendment as it aimed to give citizenship to the minorities of the neighbouring countries as these communities were facing religious persecution as all these three countries are Islamic countries. However, many people dissented on grounds of why this citizenship is given to these six communities only and why this citizenship is given to immigrants of these three neighbouring countries only.

After the passing of the bill it gave rise to predominant protests in numerous areas of the country on the other side, many people supported it. From protests to rallies, the controversy was expanding and the whole country was in disruption. Likewise, the issue became a highly debatable issue in the country.

Many people argued that the Citizenship Amendment Act did not include communities like Rohingyas, Sri Lankan Tamils, Atheists, and Jews. People questioned the exclusion of the other neighbouring countries like Nepal, Bhutan, and Myanmar which share land boundaries with India. However, the officials stated that this amendment act aims to safeguard the religious minorities of these three countries. People against the bill argued that it discriminated against the Muslims who faced persecution and came to India. Article 14[8] India prohibits any discrimination on the basis of religion. As the CAA is related to religion therefore many protesters argued that this amendment seems to be a violation of Article 14.

Characteristics of Citizenship Amendment Act, 2019

The Citizenship Act of 1955 didn’t permit citizenship to illegal immigrants. However, through the amendment of the act, the new Citizenship (Amendment) Act provides an alternative to the traditional form of acquiring citizenship. Now all the immigrants from six communities that are Hindus, Jains, Buddhists, Parsis, Sikhs, and Christians are permitted to get citizenship in India. Indian Citizenship is allowed only to immigrants from the three countries that are Pakistan, Afghanistan, and Bangladesh. All the immigrants from other communities and other countries sharing boundaries are excluded. Only those immigrants are given citizenship which are mentioned in the Amendment Act, 2019.
Bill also provides that if any people arrived to India before 31st December 2014 and belong to any of the six communities disclosed and came from any three given countries will get Indian citizenship. Only those people can apply for citizenship who has come before the date mentioned which is 31st of December 2014.
Bill also provides that now the naturalization period will be 5 years for these minorities mentioned. However, before this amendment act the naturalization period was 11 years.
The amendment act also provides that all the legal proceedings against such illegal immigrants who have come into India before the date: 31st December 2014 shall be closed.
Bill also introduced the amendments for Overseas Citizens of India (OCI). Section – 7 states that “A foreigner can register for OCI. For that there is a condition that either their spouse should be of Indian origin or they should be of Indian origin. OCI cardholders will get advantages, like the right to work and study in the country.”
According to the data recorded by the Intelligence Bureau, it is stated that “this act will give advantage to as many 31,313 people, which include 25,447 Hindus, 5,807 Sikhs, 55 Christians, 2 Buddhists, and 2 Parsis”[9].
The Amendment Act contains two exceptions i.e. one is that “it does not apply to tribal areas, which are Meghalaya, Assam, Mizoram, and Tripura as these states are included in the 6th Schedule of The Indian Constitution”. Another is that the act is also “not applicable to the areas which are notified under the inner limit of the Bengal Eastern Frontier Regulation Act, 1873.”[10]

The objective of the Citizenship Amendment Act, 2019

Earlier the Citizenship Act, of 1955 prohibited citizenship for illegal immigrants. According to the government, the three mentioned countries i.e. Pakistan, Afghanistan, and Bangladesh are not secular and they are Islamic countries.

The Minority communities of these countries i.e. Hindus, Sikhs, Parsis, Jains, Christians, and Buddhists were facing religious persecution. Therefore, these communities came to India, and for the protection of these minorities, an amendment act was introduced. By way of the commencement of this amendment act all these illegal immigrants will get citizenship.

All the legal proceedings against them on the basis of migration or citizenship will be closed. They can apply for citizenship and they are not required to present the documents. The government also clarified that the principal objective of the act is to distribute the loss of migrants and reduce it as much as possible.

Even the CAA reduces the naturalization duration from 11 to 5 years. As per the government, it is the biggest relief to the illegal immigrants who face a lot of discrimination and problems in their lifes.

The statement of Objects and Reasons in the Citizenship Amendment Bill, 2019 declares that- “It is a well-known fact that our country faced trans-border migration from mainly Pakistan, Afghanistan, and Bangladesh. During the partition, many citizens of undivided India with different faiths were staying in these areas.

After becoming independent these countries became Islamic countries and people belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian communities have faced religious persecution in those countries. Their right to practice, profess, and propagate their religion is feared to be restricted. As a result, these people arrived in India with or without travel documents to live their lives peacefully.[11]”

Limitations of the Citizenship Amendment Act, 2019

As per the government, it was a great step to protect the minorities who faced discrimination. Many people supported and favored the decision of the government. But this issue became the most controversial issue. Many people were against the decision of the government, these people protested, conducted rallies, and condemned the Amendment Act. The main limitations or major shortcomings of this amendment act are as follows:

Basis on Religion: People were questioning the government why only these six communities were included and from these three countries only. This act was condemned for its religion-centric approach to the protection of people. Many people say that this amendment was discriminating against the people on the basis of religion especially because they excluded the Muslim community who came to India after facing persecution. Due to religion religion-centric approach the amendment received wide criticism from people of many communities who were not included and many people supported protests for the exclusion of other communities and neighbouring countries. “The Office of the United Nations High Commissioner for Human Rights (OHCHR) labeled it as ‘fundamentally discriminatory’. However, it was added, that the government’s decision towards safety of persecuted minorities is welcomed but this could be accomplished through a non-discriminatory system[12].” The exclusion of other religious minorities like Rohingyas of Myanmar, Tibetans, and Sri Lankan Tamils was felt discriminatory in a big way. It was questioned that, the CAA act provides protection in the form of citizenship then it must be provided to all the religions who migrated to India. Provision for only six communities seems discriminatory to other communities and provision must be provided to other communities also who faced persecution or were in fear of facing such persecution. For example, Shias and Ahmedis, these groups also faced religious persecution in countries like Pakistan[13].

Constitutionality of the Act: Article 14[14] clearly states that discrimination based on religion is prohibited in the country. In the famous case of Dr. Saurabh Chaudhari v. Union of India, “Supreme Court ruled that the basis of the reasonable classification must be intelligible differentiation. So, that it could be clarified how one is chosen and other is left out[15].” In another case of NHRC v. State of Arunachal Pradesh[16], it was held under Articles 14 and 21, that Chamka refugees were entitled to the fundamental right of life and liberty. These refugees were entitled to this right even though they were not citizens of India. Through the reference to this case, one can observe Citizenship Amendment Bill seems discriminatory and violates Articles 14 and 21[17]. However, according to the government and people who supported this act, the Act did not violate any article and it was not discriminatory as it was provided to those minorities only who faced actual persecution.

Technical limitations: It was observed that the bill nowhere mentioned words like religious minorities or prosecuted minorities. However, the bill includes only the names of religions which seems discriminatory and this approach goes at odds with the basic structure of the constitution. Instead of the names of religions if they had used words like ‘persecuted minorities’ or ‘minorities’ this would have had better results and the topic would have remained less controversial. Taking only six communities and specifying the three countries only in the bill seems quite weird. The government should have adopted a neutral approach for better outcomes. It diverted the objective that is ‘protection of minorities’ to ‘discrimination against other communities’.

Exclusion of others: It was alleged that the bill did not include Muslims, Jews, Atheists, and other communities. It was also contended that it doesn’t include other countries that share land boundaries with India like Myanmar, Bhutan, Nepal, and other neighbouring countries like Sri Lanka. However, the government answered that it targeted only those minorities who were facing persecution and countries, which are not secular. The government further stated that the amendment aims to help illegal immigrants come out of problems of discrimination and legal proceedings. And so, that they can get Indian citizenship and live a happy life. But, protestors are of the view that it was an injustice to other communities who migrated as they would be in great trouble. They can’t go back to their countries nor they can get citizenship from India. It will be a great hardship for them.

“Article 14 guarantees equality to all persons, including citizens and foreigners. It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose[18].”

History of illegal immigration

During, the 12th to 20th Century, the Parsis of the Iran country left their country and immigrated to India[19]. The main reason behind migration was the religious persecution faced by them. In 1947, when the partition between Pakistan and India took place around 1 crore people migrated to India and some people migrated to Pakistan[20]. From 1960 to 1971, because of the partition between India and Pakistan, it led to The Bangladesh Freedom Movement.

This movement became a war, and due to such circumstances people of Bangladesh to a large extent migrated to India[21]. During the China- Tibet war between the period of 1959 to 1960, many Tibetans migrated from Tibet to India. The main reason behind migration was war and people in search of a better place came to India[22]. In 1979 because of the war between the Soviets and Afghans many Afghans migrated to India.

The main reason behind the migration was the religious persecution faced by the Afghans. Similarly, in Sri Lanka between the period of 1980 to 2000, there was a situation of civil war in the country. Due to the civil war, many Sri Lankan Tamils migrated from their country to India. Likewise, from 2015 to 2017 many Rohingyas migrated from Myanmar to India[23]. In 2001 census report of migrants migrated to India reflected that the highest number of migrants came from Bangladesh and the second highest from Pakistan[24].

Citizenship in India is discussed in the Citizenship Act and Constitutional Law of India. The Citizenship Act, of 1955 states who could be citizens of India after 1950 and how can people acquire citizenship. The Citizenship Amendment Act, of 2019 amended the previous act by changing the definition of illegal immigrants. Before the amendment, the act defined illegal migrants as “An illegal migrant is a foreigner who: enters the country without a valid travel document, and stays beyond the permitted period.[25]” However, today all illegal migrants who have come before 31st December 2014 will get “Indian Citizenship”.

However, the main controversy before the bill was mentioning six communities only which had arrived in India from Pakistan, Afghanistan, and Bangladesh. People belonging to other communities and other countries which are not mentioned are excluded from the benefit of getting citizenship. The bill also turned down the duration of naturalization from 11 years to 5 years.
This amendment became a controversy because the act excluded many migrants and countries sharing land boundaries.

As the people leave neither they can go back to their countries they’ll get Indian Citizenship. It will result in great hardship for them. However, the government clarified it and stated citizenship is granted only to six communities because they were minorities. However, the people protested because of the religion-centric approach and considered it an infringement of Article 14[26]. Protestors conducted rallies as they disagreed with the decision of the government based on discrimination towards other communities that migrated to India and other neighbouring countries.

CAA and NRC

NRC stands for “the National Register of Citizens”. At present, only Assam has the National Register of Citizens. During riots happening all over India, from 1920 many people from East Bengal migrated to northeastern states specifically to Assam. In Assam due to illegal migration population of refugees became more in number than the actual citizens of Assam.

These refugees started using the resources of the state which led to a crisis in the state. During the Pakistan- India partition and before the formation of Bangladesh, many people immigrated to northeastern states. Assam Andolan (1979-1985) led to the formation of the Assam Accord in 1985 which states any person who came to Assam after 24th March 1971 was not Indian Citizens.

To satisfy the intent of the Assam Accord, NRC came into existence. NRC helped to identify 19 lakh people who illegally migrated to Assam[27]. CAA, 2019 clarifies that instead of taking the year 1971, citizenship will be provided to people who arrived in India before 31st December 2014. Though, the act mentioned only six communities and considered only three countries. People argued that the act violates the Assam Accord.

Petitions Filed Against CAA, 2019

Numerous petitions were filed opposed to the CAA, in 2019. Approximately were 143 petitions filed against the CAA, in 2019. ‘Indian Union Muslim League’ filed a petition against CAA. As per the India Union Muslim League, the Citizenship Amendment act is violating Article 14 Right to Equality.

As a result, there is discrimination towards other religions that are not mentioned in the bill. They also stated that the act discriminates against the Muslim religion. According to IUML, there is a “refusal of balanced treatment to all religions in the eyes of law”.

Another petition was filed by Mahua Moitra and Jairam Ramesh against the CAA. They stated that “CAA treats equally as unequal” and considered CAA as a “brazen attack on the core fundamental rights envisaged under the Constitution.” As per their appeal, CAA is violating Articles 14 and 21 and is based on unreasonable classification.

The Kerala Government also filed a petition against the CAA, 2019 under Article 131. Article 131 states that, “the Supreme Court has original jurisdiction over any dispute arising between the states or between the center and state.[28]”

As per the petition, CAA is in contravention of Article 14, Article 21, and Article 25 of the Constitution. The petition was filed by Advocate G. Prakash as a representative of the Kerala Government. The Assembly of Kerala also passed a resolution for the cancellation of CAA, 2019.

Suggestions & Conclusion

The objective of the CAA is to defend minorities who face persecution. But, the main problem is that it included only six communities. Others like Rohingyas, Sri Lankan Tamils, Jews, Afghans, Muslims, etc are completely ignored. The selection of six communities is unreasonable as many other communities also faced persecution and migrated to India.

The act gives no solution to the communities ignored. They can’t go back to their country and they can’t get Indian Citizenship. Further, it includes only three countries.

A suggestion could be that the government should have included other communities also which have migrated to India. The bill should also include other neighbouring countries. And, instead of directly mentioning the names of religions they must have used words like ‘minorities’ or ‘persecuted minorities’.

Bibliography

Books referred-

William Blackstone, Commentaries on the laws of England (4th edition. 1770)
Narender Kumar, Constitutional Law of India, Allahabad Law Agency (11th edition 2023)

Acts-

The Constitution of India.
The Citizenship Amendment Act, 2019.

Websites-

· India Today, www.indiatoday.in (last visited on 22nd June, 2024)
· The Times Of India, https://timesofindia.indiatimes.com (last visited on 22nd June, 2024)
· BBC news, https://www.bbc.com (last visited on 22nd June, 2024)
· Census of India 2001, https://www.censusindia.gov.in (last visited on 22nd June, 2024)
· IPleaders, https://blog.ipleaders.in (last visited on 22nd June, 2024)
· https://pib.gov.in (last visited on 22nd June, 2024)
· The Telegraph online, https://www.telegraphindia.com (last visited on 22nd June, 2024)
· Ipleaders, https://blog.ipleaders.in (last visited on 22nd June, 2024)

Citation

[1] The Citizenship Act, 1955 Section 3
[2] The Citizenship Act, 1955 Section 5
[3] The Citizenship Act, 1955 Section 6
[4] The Citizenship Act, 1955 Section 4
[5] The Citizenship Act, 1955 Section 7
[6] William Blackstone, Commentaries on the laws of England (4th edition. 1770)
[7] The Citizenship Amendment Bill 2019, Press Information Bureau Government of India Ministry of Home Affairs, https://pib.gov.in (last visited on 22nd June, 2024)
[8] The Constitution of India, Article 14
[9] The Telegraph online, https://www.telegraphindia.com (last visited on 22nd June, 2024)
[10] Ipleaders, https://blog.ipleaders.in (last visited on 22nd June, 2024)
[11] Statement of Objects and Reasons, The Citizenship (Amendment) Bill, 2019
[12] Rajneesh Kumar Yadav, Whether Citizenship Amendment Act, 2019 is against the concept of secularism: An Appraisal, 12 RMLNUJ 220 (2020)
[13] IPleaders, https://blog.ipleaders.in (last visited on 22nd June, 2024)
[14] The Constitution of India, Article 14
[15] Dr. Saurabh Chaudhari v. Union of India, (2004) 2 MLJ 113 SC
[16] NHRC v. State of Arunachal Pradesh, (1996) 1 SCC 742: AIR 1996 SC 1234
[17] The constitution of India, Article 14 Article 21
[18] State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.
[19] Census Report 1881, Karaka D.F. (1884), History of the Parsis: Including Their Manners, Customs, Religion, and Present Position, vol. 1, London: Macmilan and Co.
[20] Asim Khwaja, Atif Mian, Prashant Bharadwaj, The Big March: Flows after the Partition of India, vol. 43, Issue no. 35, 30 Aug, 2008
[21] Asim Khwaja, Atif Mian, Prashant Bharadwaj, The Big March: Flows after the Partition of India, vol. 43, Issue no. 35, 30 Aug, 2008
[22] The Times Of India, https://timesofindia.indiatimes.com (last visited on 22nd June, 2024)
[23] BBC News, https://www.bbc.com (last visited on 22nd June, 2024 )
[24] Census of India 2001, https://www.censusindia.gov.in (last visited on 22nd June, 2024 )
[25] The Citizenship Act, 1955 Section 2(1)(b)
[26] The Constitution of India, Article 14
[27] India Today, www.indiatoday.in (last visited on 22nd June, 2024)
[28] The Constitution of India, Article 131