Constitutional Validity Of Citizenship Amendment Act (CAA)

Divya, Chanderprabhu Jain College

Introduction:

What is Citizenship?

Citizenship defines the relationship between the nation and the people who constitute the nation.

It confers upon an individual certain rights such as protection by the state, the right to vote, and the right to hold certain public offices, among others, in return for the fulfillment of certain duties/obligations owed by the individual to the state.

Citizenship in India:

The Constitution of India provides for single citizenship for the whole of India.

Under Article 11 of the Indian Constitution, Parliament has the power to regulate the right of citizenship by law. Accordingly, the parliament passed the Citizenship Act of 1955 to provide for the acquisition and determination of Indian Citizenship.

Entry 17, List 1 under the Seventh Schedule speaks about Citizenship, naturalization, and aliens. Thus, Parliament has exclusive power to legislate with respect to citizenship.

Until 1987, to be eligible for Indian citizenship, it was sufficient for a person to be born in India.

Then, spurred by the populist movements alleging massive illegal migrations from Bangladesh, citizenship laws were first amended to additionally require that at least one parent should be Indian.

In 2004, the law was further amended to prescribe that not just one parent be Indian; but the other should not be an illegal immigrant.

Historical background:

The Citizenship Amendment Bill was introduced in the Lok Sabha (House of Commons) in 2016 as an amendment to the Citizenship Act of 1955. The Joint Parliamentary Committee concluded its report on the CAA Bil on 7th January 2019. On 8th and 11th January 2019, the CAA Bill was passed by the Lok Sabha and the Rajya Sabha and was sent for the President’s assent.

The Citizenship Amendment Act will provide Indian citizenship to 6 communities of India’s three neighboring countries; Afghanistan, Bangladesh, and Pakistan, who are minorities in their country. These 6 communities are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians.

Indian citizenship will be provided to only those individuals who have been residing in India before 21st December 2014.

Is CAA Unconstitutional?

Since the introduction of the Citizenship Amendment Bill, the opposition has been claiming it is unconstitutional. They argue that the CAA, along with the National Register of Citizens (NRC) will benefit only non-Muslims.

Moreover, there has been mass protest in Assam, where protestors are claiming that this act contradicts the Assam Accord of 1985, which states that illegal migrants residing after 25th March 1971 from Bangladesh must be deported back.

Estimates claim that more than 2 crore illegal Bangladeshi migrants are currently living in Assam and are responsible for the depletion of natural resources and inflation in the state.

However, the CAA is not unconstitutional. The government has considered all the dimensions and has explained all the rules of the Citizenship Amendment Act, which will provide Indian citizenship to people living in India illegally before 31st December 2014.

CAA New Rules:

On 11th March 2024, the Indian Government revised the rules of the Citizenship Amendment Act of 2019. These new rules will help in the implementation of this much-awaited controversial law. According to the CAA’s new rules, individuals belonging to any of these 6 communities must have the following documents issued by their country of origin:

Birth or Educational Institution Certificate.

Identification Card (of any kind).

Any license or certificate.

Land or tenancy records or any other official documents where their name and age are mentioned.

These documents are necessary to prove that the individual was once a resident of that country. Moreover, it will provide a sense of belonging to their identity.

Case Laws:

The Citizenship (Amendment) Act, 2019 (hereafter ‘CAA’) amends the Citizenship Act, 1955 so as to grant a certain class of illegal migrants a path to Indian citizenship. The CAA makes illegal migrants eligible for citizenship if they (a) belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community and (b) are from Afghanistan, Bangladesh or Pakistan. It only applies to migrants who entered India on or before 31 December 2014. Certain areas in the North-East are exempted from the provision.

Viewed in combination with the proposed all-India National Register of Citizens (NCR), the CAA has the potential to deprive many Muslims residing in India of full citizenship. The proposed NRC will likely deprive many persons, both Muslim and non-Muslim, residing in India of citizenship. While excluded non-Muslims will have the opportunity to regain citizenship via the CAA, this will not be the case for Muslims. Hence, the NRC in combination with the CAA may disproportionately exclude Muslim residents of India.

On 11 December, Parliament passed the Citizenship (Amendment) Bill, 2019 (at which point it became the Citizenship (Amendment) Act, 2019). The CAA was officially notified on 10 January 2020.

Immediately after the Bill was passed, the Indian Union Muslim League (IUML) filed a petition under Article 32 of the Constitution challenging the constitutionality of the CAA. Soon various other litigants followed and there are currently around 200 petitions tagged to the IUML petition. These petitions primarily challenge the CAA for discriminating on the basis of religion. They also contend that it violates the fundamental rights to equality and dignity of illegal migrants under Articles 14 and 21 of the Constitution.

A majority of the petitions base their primary challenge to the CAA on Article 14. Article 14 guarantees all ‘persons’ (not only citizens) equality before the law and equal protection of the law. In R.K. Garg (1981), the Supreme Court established that Article 14 prohibits Parliament from enacting laws that arbitrarily or irrationally differentiate between groups of persons. The Court has developed the two-part reasonable classification test for assessing whether a law unconstitutionally differentiates between persons: (1) any differentiation between groups of persons must be founded on ‘intelligible differentia’; (2) ‘that differentia must have a rational relation to the object sought to be achieved by the Act’. The petitioners claim that the CAA fails the reasonable classification test and thus violates Article 14 of the Constitution.

The stated aim (‘object sought to be achieved’) of the CAA is to accommodate persons facing religious persecution. The petitioners claim that this aim has no rational relation with a differentiation based on religion and country of origin. For example, there are illegal migrants who have fled to India after facing religious persecution in Sri Lanka, but the CAA arbitrarily excludes them. The petitioners conclude that there is no rational nexus between the differentia and the aim sought.

The petitions pray for the Supreme Court to strike down the CAA for violating the Constitution. A majority of the petitions single out Section 2(1)(b) of the CAA, which specifically provides for a path to citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh or Pakistan.

Further, many of the petitions pray for the Court to strike down four notifications issued by the Union government in 2015 and 2016 on the same grounds. The notifications (G.S.R. 685(E), 686(E), 702(E), 703(E)) exempt illegal migrants from the above six religions and three countries of origin from deportation and detention under the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.

On 28 May, the Government of India issued an order under Section 16 of the Citizenship Act, 1955. The order gives district collectors in 13 districts with a high migrant population the power to accept citizenship applications from people from the same 3 countries belonging to the same 6 religions.

On 1 June, the IUML has filed an application requesting an interim stay on this order.

Conclusion:

The parliament has unfractured powers to make laws for the country when it comes to Citizenship. The opposition and other political parties allege this Act by the Government violates some of the basic features of the constitution like secularism and equality. It may reach the doors of the Supreme Court where the Supreme Court will be the final interpreter. If it violates the constitutional features and goes ultra-wires it will be struck down, if it is not we will continue to have the law.

But one most important thing is, that an equilibrium has to be attained by New Delhi as this involves neighbouring countries too. Any exaggerated attempt to host the migrants should not be at the cost of goodwill earned over the years. India being a land of myriad customs and traditions, the birthplace of religions, and the acceptor of faiths and protectors of persecution in the past should always uphold the principles of Secularism going forward.