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Citizenship Amendment Act (CAA): Legal Analysis

In December 2019, the Citizenship Amendment Act (CAA) was passed in our country, which offers a pathway to citizenship for undocumented immigrants from Afghanistan, Bangladesh, and Pakistan who are members of Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious minorities and entered India before December 2014.

However, critics claim that the CAA is biased against Muslims and goes against the principles of secularism enshrined in the preamble of the constitution and violates many national and international laws. The Act does not apply to the persecuted migrants coming from the other neighboring countries like Nepal, Bhutan, Myanmar, China and Sri Lanka. The CAA is allegedly closely linked with the National Register of Citizens (NRC), which aims to identify illegal immigrants, leading to concerns about statelessness and exclusion.

The Act earlier sparked widespread protests and legal challenges, bringing attention to contentious discussions surrounding immigration, religious freedom, and India's secular identity. The Act has since been notified for its implementation on 11.03.2024.

According to Delhi based attorney Gautam Bhatia, the legislation openly and unashamedly aims to incorporate religious discrimination into the law by categorizing suspected migrants as either Muslims or non-Muslims, in direct opposition to our established, secular constitutional values. Historian Mukul Kesavan stated that while the law appears to address the issue of providing sanctuary to foreigners, its primary objective is to discredit the citizenship of Muslims.

According to Mr. Bhatia, if the government proceeds with its proposal to implement the nationwide NRC, it will result in the division of those excluded from it into two groups: predominantly Muslims, who will be considered illegal migrants, and all others who would have been deemed illegal migrants but are now protected by the Citizenship Amendment Bill if they can prove their country of origin to be Afghanistan, Bangladesh, or Pakistan.

This combination of the NRC and CAA has the capability to convert India into a majoritarian society with varying levels of citizenship privileges, as stated by sociologist Niraja Gopal Jaya.

CAA violates International Laws:

The Citizenship Amendment Act (CAA) of India has received criticism for potentially violating numerous international laws and norms. Some of the key ones include:
  • The Universal Declaration of Human Rights (UDHR): The CAA may be in violation of Article 2 of the UDHR, which prohibits discrimination based on various grounds, including religion. By providing preferential treatment to certain religious groups while excluding others, the CAA could be viewed as discriminatory.
  • The International Covenant on Civil and Political Rights (ICCPR): Article 26 of the ICCPR guarantees equality before the law and non-discrimination. The CAA's religious criteria for citizenship may go against this principle by discriminating against certain religious groups.
  • The International Covenant on Economic, Social and Cultural Rights (ICESCR): The potential impact of the CAA on the socio-economic rights of excluded communities, particularly those rendered stateless or stripped of citizenship, raises concerns under the ICESCR.
  • The Convention on the Rights of the Child (CRC): The CRC emphasizes the right of every child to acquire a nationality. The CAA's provisions could lead to statelessness among children belonging to excluded communities, which would be inconsistent with this principle.
  • The Convention Relating to the Status of Refugees (1951 Refugee Convention): Although India is not a signatory to the Refugee Convention, the principles of non-refoulement and non-discrimination are considered customary international law. The exclusion of certain persecuted groups from neighboring countries in the CAA may conflict with these principles.
  • The Convention on the Reduction of Statelessness (1961 Statelessness Convention): The potential for the CAA to render individuals stateless, particularly those unable to prove citizenship or meet the Act's criteria, goes against the objectives of the Statelessness Convention.
  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD): The Citizenship Amendment Act's (CAA) religious requirements for citizenship may be considered a type of discrimination based on race or ethnicity, potentially going against the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)'s ban on such discrimination.

While a country may not be obligated to abide by all of these conventions, they do represent commonly accepted principles of international law and human rights that are important for evaluating the legality and consequences of the Citizenship Amendment Act.

CAA Violates Indian Laws:

The Citizenship Amendment Act (CAA) has sparked debates about its compatibility with various provisions of the Indian Constitution and existing laws. Critics argue that the CAA violates or undermines the following Indian laws and rules:
Article 14 - Right to Equality: The CAA has been criticized for going against Article 14 of the Indian Constitution, which guarantees equality before the law and prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. By giving preferential treatment to refugees based on their religion, the CAA is seen as contradicting this constitutional provision.

Article 15 - Prohibition of Discrimination: Article 15 prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. Critics argue that the CAA's religious criteria for granting citizenship could be considered discriminatory and thus in violation of this provision.

Article 21 - Right to Life and Personal Liberty: Some critics argue that the CAA's potential to render individuals stateless or deprived of citizenship could infringe upon their right to life and personal liberty, which is guaranteed under Article 21 of the Indian Constitution.

Article 25 - Freedom of Religion: According to Article 25, individuals have the freedom of conscience and the right to freely profess, practice, and propagate religion. Critics argue that by excluding Muslims from its provisions, the CAA undermines the secular nature of India and violates the right to religious freedom. It also violates the spirit of the constitution as enshrined in the preamble.

The Foreigners Act, 1946: The CAA intersects with the Foreigners Act, which regulates the entry, stay, and departure of foreigners in India. Critics claim that the CAA's provisions for granting citizenship based on religion could potentially clash with the principles and objectives of the Foreigners Act.

The Assam Accord, 1985: The potential impact of the Citizenship Amendment Act (CAA) on the implementation of the Assam Accord, a 1985 agreement aimed at identifying and deporting illegal immigrants from Bangladesh, has sparked concerns. Critics argue that the CAA goes against the spirit of the Assam Accord and could undermine its objectives.

The Constitutional (Amendment) Act, 2003 (93rd Amendment): Furthermore, the 93rd Amendment of the Constitution (Amendment) Act, 2003, which introduced Article 15(5) allowing the state to make special provisions for the advancement of socially and educationally backward classes, is also being questioned. Critics argue that the exclusion of Muslims from the CAA's provisions may contradict the spirit of this amendment by perpetuating social inequality based on religious identity.

These are just a few of the Indian laws and constitutional provisions that critics claim are being violated or undermined by the CAA. However, supporters argue that the CAA is in line with the Constitution and necessary for providing refuge to persecuted minorities.
  • Selective citizenship based on religion: By granting citizenship based on religious identity, the CAA undermines the secular foundation of India's democracy and fosters religious polarization.
  • Potential for demographic changes: There are also concerns about the potential for demographic changes, particularly in states like Assam where the indigenous population's rights could be affected.
  • Lack of clarity: The lack of clarity and clear guidelines in the CAA's process for identifying and granting citizenship to eligible applicants has caused confusion and raised concerns about potential misuse.
  • Ambiguity in eligibility criteria: Moreover, the ambiguity in the Act's eligibility criteria for determining persecution leaves room for subjective interpretation and could result in discrimination in granting citizenship.
  • Potential for statelessness: This could potentially lead to statelessness among marginalized communities who are unable to provide documentation or meet the criteria for citizenship.
  • Omission of Non-Neighboring Persecuted Minorities: The CAA solely focuses on persecution from neighboring countries, leaving out persecuted minorities from other regions who may seek refuge in India.
  • Lack of Protections for Existing Minorities: Critics argue that the Act fails to address the concerns of existing minority communities in India, specifically regarding their rights and safety.
  • Undermining Secularism: The religious criteria of the CAA undermine India's secular fabric, potentially leading to social and religious tensions.
  • Potential for Misuse by Authorities: The Act could potentially be exploited by authorities to target and marginalize certain communities, particularly Muslims, under the guise of enforcing immigration laws.
  • Insufficient Provisions for Refugee Resettlement: The CAA lacks adequate provisions for the resettlement and integration of refugees, leaving them vulnerable to exploitation and marginalization.
  • Legal Challenges: The Act is facing legal challenges on the grounds of constitutionality and violation of fundamental rights, leading to uncertainty about its implementation.
  • Lack of Consultation with Stakeholders: The government's failure to consult with relevant stakeholders, such as state governments and minority communities, has resulted in widespread opposition and lack of trust.
  • Potential for Communal Violence: The discriminatory nature of the CAA and exclusion of Muslims could exacerbate communal tensions and violence, posing a threat to India's social harmony.
  • Impact on India's International Image: The discriminatory provisions of the CAA have drawn criticism from the international community, damaging India's reputation as a secular and democratic nation.
  • Diversion of Resources: The implementation of the CAA may lead to a diversion of resources from more urgent issues such as poverty alleviation and healthcare. This could have negative consequences for the country's development.
  • Exacerbating of Regional Tensions: Moreover, the Act may exacerbate tensions with neighboring countries, who may view it as interference in their internal affairs. This may strain diplomatic relations and could have wider regional implications.

Long term implications for Citizenship: Furthermore, the CAA's focus on religious identity for citizenship sets a dangerous precedent and could have significant long-term consequences for India's citizenship laws and secular values. This highlights the need for a more inclusive and equitable approach to refugee protection and citizenship in the country.

The government has claimed in the public sphere that the Act aims to expedite citizenship for persecuted individuals, yet neither the statute nor the Rules mention persecution, and there is no requirement for proof of persecution before citizenship can be granted.

The Constitution grants citizenship through birth, descent, and migration, regardless of religion, as outlined in Articles 5, 6, 7, 8, 9 and 10. These Articles demonstrate the secular nature of the Constitution, which is a fundamental feature. The Citizenship Act of 1955 was passed by Parliament to regulate the granting and termination of citizenship, and it does not consider religion as a factor for citizenship. However, as per CAA citizenship will now be granted on the basis of religion alone.

There has also been a centralization of the federal administrative structure. Previously, applications for citizenship were to be made to the relevant district magistrate or collector. However, under the amended Rules, individuals seeking the benefits of the CAA must now apply to an empowered committee established by the Union Government.

Further, Pakistani Hindus in Rajasthan who did not make it into the Citizenship Amendment Act (CAA) stare at an uncertain future. They reportedly came to India after December 31, 2014.

Overall, the CAA's flaws and controversies expose the complex nature of the issue and emphasize the importance of finding a fair and just solution that addresses all relevant factors and perspectives.

Written By: Md.Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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