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Critical Analysis of the Citizenship Amendment Act, 2019

The Citizenship Amendment Act, 2019 is a policy reform since the 2004 Amendment of the Citizenship Act, 1955. The 2004 Amendment had presented the Act with the definition of illegal migrant. Section 2(1)(b) of the Citizenship Act, 1955[1] defines the term of illegal migrant. According to it, illegal migrants are those who have entered India without valid passport or any documents prescribed under any law in that behalf. The definition includes any person of any religion.

It does not create any differentiation on any grounds such as creed, gender or religion. However, Citizenship Amendment Act, 2019 inserted a proviso to it and by doing so it has made the Act controversial on various grounds.

According to the added proviso, people belonging from Hindu, Sikh, Buddhist, Jain, Parsi or Christian community who have entered India from Afghanistan, Bangladesh or Pakistan before 31st December 2014 not meeting the criteria laid down under clause (c) of Sub-Section (2) of Section 3 of the Passport Act, 1920[2] or Foreigners Act, 1946, would not be treated as illegal migrant. This provision has exempted only the people belonging from the Islam community.

The reason stated of such exemption has been based upon religious persecution of minorities in the three nations. However Citizenship Amendment Act includes no such term of religious persecution. The religious persecution theory has no written form. In the formulation of a statute such an omission cannot be acceptable and this is a tremendous error.

The United Nations High Commissioner for Refugees (UNHCR) defines persecution as a threat to life and freedom based upon an individual’s race, religion, nationality, political opinion, or membership of a particular social group[3]. It does not state that in a nation persecution happens only with the minorities. In the three countries mentioned in the Act, which are Islamic dominant nations, there have been instances of persecution of Muslims.

Almost four thousand men had died in the Shia – Sunni Sectarian fight in Pakistan, and the Sunni extremists had been persecuting and killing people from Shia community since historic times. Hence the conception that people from the dominant religion in a country cannot be persecuted is totally vague and baseless. By excluding Muslims from the Citizenship Amendment Act, 2019, the Parliament has committed an enormous constitutional error.

This proviso does not only exclude Muslims from these three States but also other religions from other States. By putting the names of the communities and the countries, the Parliament has created the proviso exclusive so if in future a need arises to include other communities and nations it would again need an amendment. This proviso constitutes fundamental, constitutional as well as technical error.

This amendment is in violation of Article 14 of the Constitution of India[4] which talks about equality and abolishes discrimination based upon race, caste, religion, sex and place of birth. As stated by our Hon’ble Home Minister in the Parliament, if at all the main intention of the amendment was for the protection of persecuted people or people from being persecuted in other countries, the bill should have considered people from all the religions, race and caste. However the Amendment Act has failed to do so.

In future this act would also be seen as to be the refugee policy of India and since refugee policies falls under the reserved domain of International Law, such an amendment would not be acceptable in the International community as it goes in violation of 1951 Refugee Convention of which India is a part.

According to the Indian legal system, all laws passed by the Parliament needs to be consistent with the Part III of the Constitution. Article 14 which deal with the Right to Equality falls under it. Since CAA differentiates and discriminates people it needs to pass through two tests to be qualified as a lawful amendment. The tests are: (a) Classification needs to be rational and based on intelligible grounds; and (b) there must be a direct nexus between the classification and object of the statute.

Many politicians and advocates had supported the amendment and held it to be lawful. Advocate Harish Salve had also held that the act adheres to Article 14 and does not violate it. He stated that the classification is based upon an intelligible differentiation and instead of equality; law of equity should be followed. Religious persecution is the basis of the act and minorities are persecuted by the majority religion in the three countries.

It is a legal misconception that majority religion cannot be persecuted and he lacked factual correctness as Pakistan and various other states which are Islamic nations had witnessed prosecution of Shias by Sunnis and Shia community is a part of Islam religion.

Our Hon’ble Home Minister in his speech in the Parliament while introducing and defending the bill for CAA had stated that the legislative intent of the bill is to protect religious minorities who are fleeing from their countries in fear of persecution. However the Legislative intent of the Citizenship Act, 1955 was simply to determine who can and cannot be citizens of India. The Amendment act also lacks the primary intention of the statute.

CAA also goes against Article 21 of the Constitution of India[5]. The amendment act is applied not only for the people who would enter India but also to the people who are present in India. Its application is dated from 31st December 2014. The liberty of the people who do not belong from the stated communities in the amendment act and lacks proper documentation to support their citizenship will be taken away.

This snatching away of the rights and liberty would be done through the process of NRC. NRC would check the documentation of the people and would decide whether one should have their citizenship rights or not. Since the Citizenship Amendment Act, is in itself unconstitutional and erroneous, the documentation process, which would support the amendment act, should be unlawful.

Before the amendment of the Citizenship Act, the naturalization period for the migrants to get their Citizenship Rights was eleven years. Through this Amendment the naturalization period has been reduced to five years and this drastic and huge reduction in the naturalization period has no reasoning to back it up. Section 6 read with Schedule III of the Citizenship Act, 1955[6] states the process and requirement of the process of naturalization. The amendment has made the naturalization process of the selected communities enormously easier which would result in a huge migration from the neighboring nations to India.

This huge inflow of Bangladeshi immigrant to the states of Assam and the north – eastern states would eventually lead to invalidation of the Assam Accord of 1985. The Assam Accord was signed by the All Assam Students Union and Mr. Rajiv Gandhi who was the then Home Secretary of India. The basic reason for the accord was to regulate the huge influx of Bangladeshi migrants and to protect and develop their social, cultural and education. For this, an amendment had been done in the Citizenship Act and Section 6A was introduced[7].

Through the Citizenship Amendment Act, 2019, Section 6B[8] has been brought in. According to it four States namely, Assam, Meghalaya, Mizoram and Tripura has been exempted from the implementation of the amendment as they are autonomous stated by the Constitution. Sub – clause 8 of section 6B shall have effect not withstanding anything contained in any other law. Hence Section 6A of the Citizenship Act shall have no effect. However though it would take precedence it has not been made immune to Section 2 and Schedule III of the Amendment. Section 2 and Schedule III intervenes in the State’s autonomy granted by Sixth Schedule of the Constitution[9].

The Sixth Schedule of the Constitution empowers the state government in the administration of the land and title of the lands falling in the Tribal Occupied areas. In future or rather in the coming elections the autonomy shall also perish as the enormous migrants in the state would get their citizenship rights by 2020. Through their power of vote and election they can easily steer the government and could control the sensitive issue relating to the Sixth Schedule.

NRIC was first initialized in 1951. It was needed at that time as India, Bangladesh and Pakistan had recently gone through the turmoil of partition. There was a huge and a constant migration of people from India and the two nations. However now the implementation of NRC would be done to find out the people who would and who would not get the citizenship rights. CAA itself is erroneous and unconstitutional, the NRC which would look into the implementation of CAA should also be deemed to be illogical.

Through Nationwide NRC all the citizens who lack the necessary documentation would be deemed to be illegal migrant according to Section 2 of the Citizenship Amendment Act, 2019. However the people from the listed communities and from the listed countries would be exempted and would continue enjoying their citizenship rights.

The CAA is inconsistent with the basic fundamentals of the Constitution. It does not pose any danger to the Muslims living in India but the implementation of NRC would definitely cause problems. Section 6 of the Citizenship Act, 1955 denies the process of naturalization to the illegal migrants but due to the introduction of the amendment, the people from the listed communities according to Section 2(1)(b), would get citizenship rights without requiring proper documentation.

The amendment act should be reconsidered by the parliament to make the necessary changes to make it constitutional and considering the massive unrest among the citizen, the situation should be handled at the earliest in the most efficient and peaceful manner.

  1. Citizenship Act, 1955, Section – 2(1)(b)
  2. Passport Act, 1920, Section 3(2)(c)
  3. Handbook on Procedures and Criteria for Determining Refugee Status under 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4Eng/REV.1
  4. Constitution of India, 1950, Article 14
  5. Constitution of India, 1950, Article 21
  6. Citizenship Act, 1955, Section 6
  7. Citizenship Act, 1955, Section 6A
  8. Citizenship Act, 1955, Section 6B
  9. Constitution of India, Sixth Schedule
Written by: Abhik Saha, Student of Symbiosis Law School, Pune, 2nd Year, B.B.A LL.B (Hons.)    

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