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Validity Of Citizen Amendment Act, 2019 And NRC: Constitutional Aspect

Dilemma of citizenship - All pervasive social prudence
The Citizenship Amendment Act 2019 is eristic hereafter CAA which was recently sanctioned by the India parliament houses which not only poisonous for the country but also very arbitrary, discriminatory, divisional and completely against the ethos and principles of the philosophical Indian constitution. The CAA is fundamentally discriminatory towards a particular section in general i.e muslims. It is to be kept in mind that the fundamental act i.e The Citizenship Act 1955 has laid down five major ways to acquire Citizenship of India which include by birth, Registration, Naturalisation, Descent and by Incorporation of some area into the borders of India. The move has been called as political to remove muslims from the country and not grant them citizen

Who is an Indian Citizen?

3 every person born in India:
  1. on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
  2. on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004) and either of whose parents is a citizen of India at the time of his birth;
  3. on or after the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004), where:
    1. both of his parents are citizens of India; or
    2. one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth1.

2(b) illegal migrant means a foreigner who has entered into India:
  1. without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
  2. with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that, behalf but remains therein beyond the permitted period of time; 2

What is Citizenship (Amendment) Act of 2019?

Under this act it has been clearly mentioned that any person who belongs to such communities as Hindu, Buddhist, Jain, Parsi, Sikh or Christian refugees from neighbouring countries like Afghanistan, Pakistan or Bangladesh who have come to the country on or before 31st December 2014 without any valid documents of their travel like the passport and visa will not be treated as illegal immigrantsnow. The CAA further states that such migrant will be granted citizenship of India by the way of naturalisation after having a 6 years of continuous residence.

What is NRC?

National Citizenship Register was made in 1951. The NRC was made to fulfil the post partition needs by counting all the people who have been the residents of the country or claimed to the Indian citizens at that time. In most of the states of India (except Assam), the NRC has not been updated correctly since its inception i.e 1951.

The reason has been that no state has a method of registration of citizens or has maintained any documents for birth, death or marriage registration. The process of NRC was seen in Assam during 2012 to 2018 with the mandate and supervision of Supreme Court of India asked people prove their citizenship based on birth documentation, lineage certificate and name of yourself or your immediate ancestors during the pre-1971 voting list of Assam.

On an all India-level these set of documents will be required for NRC. However, it has been witnessed that the concept of NRC is flawed inherently at it asks for documents mandatorily. Finding the documents all of a sudden is going to be troublesome for a whole lot of population.

The most shocking part of the latest legislation CAA is that it seeks to grant citizenship rights to particular minorities of the neighbouring countries based on the religion which stands completely biased and impractical making it a violation of article 14 of the Constitution of India. The point of reasonable classification given by the ruling Indian government and is not at all tenable under the eyes of the legal system of the country.

There is actually no reasonable classification to whom citizenship of the country should be awarded and there exists the class legislation deciding the classification. Thus, making act stand fundamentally incorrect and clearly unconstitutional. In expansion, the CAA terribly violates the preamble, various important articles of Indian constitution like Article 15, 25, 29 and 30 with Article 14 as well like supra. Besides the act also violates article 51C and article 253 that makes the country party and mandates obligation on the country to make sure that international law is reputed in true nature.

The Impugned Provisions Does Violate The Doctrine Of Basic Structure
The Constitution of India has certain fundamental aspects of the Constitution called the doctrine of Basic Structure. The Constitution empowers Parliament and the State Legislatures to make laws within their respective jurisdiction. Bills to amend the Constitution can only be introduced in the Parliament, but this power is not absolute. If the SC finds any law made by the Parliament inconsistent with the Constitution, it has the power to declare that law to be invalid.

Thus, to preserve the ideals and philosophy of the original Constitution, the SC has laid down the Basic Structure doctrine. According to the doctrine, the Parliament cannot destroy or alter the Basic Structure of the Constitution of India hereinafter COI. The concept developed gradually with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the Constitution. That the Constitution has "basic features" was first theorised in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan3.

He wrote, It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution and if the latter, would it be within the purview of Art. 368? SC, through the decisive judgement of Justice H. R. Khanna in Keshavananda Bharti v. State of Kerala (1973) case, declared that the Basic features of the Constitution is resting on the basic foundation of the Constitution. The basic foundation of the Constitution is the dignity and the freedom of its citizens which is of supreme importance and cannot be destroyed by any legislation of the Parliament5.The basic features of the COI has not been explicitly defined by the judicial bodies.

At least, 20 principles have been described as "essential" by the Courts in multiple cases, and have been incorporated in the Basic Structure. Only Judiciary decides the basic features of the Constitution. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva Mills case, it was, observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it.

Here are some of the features of the Constitution termed as basic are given below:
  • The feature of Separation of Powers
  • The objectives which are given in the Preamble to the COI
  • Judicial Review
  • Art. 32 and 226 and so on.
The preamble to the Constitution of India is a brief introductory statement that sets out guidelines, which guide the people of the nation, and to present the principles of the Constitution, and to indicate the source from which the document derives its authority, and meaning.

The Preamble of India State's India a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation

By the introduction of both the CAA & NRC the Parliament is trying to challenge the Preamble of the COI i.e., Preamble clearly States that the India is a secular country. Secularism in India means equal treatment of all religions by the State. With the 42nd Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation.

However, neither India's Constitution nor its laws properly define the relationship between religion and State. The laws implicitly require the State and its institutions to recognise and accept all religions, enforce Parliamentary laws instead of religious laws, and respect pluralism. But the CAA & NRC clearly discriminates the people of Muslim Community on the basis of religion.

According to the Constitution of India there is no State favoured religion , it allows the citizen's to follow various religion as per their wish. Baring some extreme views, which had no role in shaping the Constitution, at no stage India was either a theocratic or an anti-religion State. It is amply supported by the core provision of the Constitution has remained unchanged since their inception.

The insertion of the word �secular' sums up the cumulative effects of these provisions leaving no scope for anyone to debate the secular credentials of the India republic as well as putting these credentials beyond the amending power of the State by clearly raising them to the status of basic feature of the Constitution. Thus, the debate may and should continue on the nature of India secularism but is no more on the question whether India is a secular State. No can India converted into a theocratic

State within the frameworks of the present Constitution. To remove any doubts in this regard the SC has repeatedly held that secularism is an unamendable basic feature of the Constitution.10 11The Constitution of India gives an equal importance to all religions & it embodies the age-old concept of sarva-dharma-sambhava. The discrimination faced by the Muslim Community is strictly a violation of the concept of secularism of the country.

Art. 13(2) under Part III of the COI states The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.12

The NRC AND CAA are unconstitutional as it is inconsistent with Part III of the Constitution. They are violative of Art. 14 and Art. 21 also as enshrined in Part III of the COI.
Article 14 of the Constitution of India reads as under:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 21 of the COI reads as under:

Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.

CAA, 2019 is fundamentally unconstitutional on the ground of Article 14 of the COI, 1950. Article 14 provides for equality before the law stating that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.

Article 14 contains two concepts - equality before law and equal protection of laws. The first, is a negative concept, which means that no one can have any special privilege in the country, with respect to treatment by law.

The second, is a positive concept, where in scores of cases, the Supreme Court had decided that the provision provides for equal treatment only under equal circumstances.
The apex court has postulated two judicial doctrines under Article 14. The first one, has been borrowed from the US jurisprudence, and is known as the Doctrine of Reasonable Classification. This says that if there is reasonable classification by a law which is based on intelligible differentia, and this differentia has a nexus with the objective of the law, then such classification should be allowed.

This is known as the nexus test, and was propounded by the Supreme Court in the case of State of West Bengal v. Anwar Ali Sarkar. The second and the latest doctrine, adopted by the Supreme Court is known as Doctrine of Non- Arbitrariness. It was first propounded by the court in EP Royappa v. State of Tamil Nadu and was also used in the famous case of Maneka Gandhi v. Union of India.

In the focus of classification made between the six religious communities and the subsequent exclusion of Muslims, it clearly implies that the classification is not valid and reasonable. This is so because it has been stated by the government that the objective behind the legislation is to provide refuge to the persons of these six religious communities facing religious persecution in the countries of Afghanistan, Bangladesh and Pakistan.

Therefore, if one is to assume that the idea behind the legislation is the protection of minorities, then the exclusion of the Hindu minorities from Sri Lanka and Bhutan from CAA is a clear violation of Article 14 since Muslims herein are not only being treated differently from others but from persons who are similarly circumstanced without any reasonable basis, and therefore such differential treatment has been unjustifiably made.

Additionally, it has been submitted that in a Legislation the classification as mentioned earlier must also be made in utmost good faith; and must have a direct correlation with the aim sought to achieved and the given objective will be bad if it stands to offend Article 14 of the Constitution of India, 1950.

Here the Muslim Community is deprived of their right and discriminated against. They are forced to move into detention camps or are send to

Muslim countries, if they fail to provide with the required documents. The Act aims to fast track citizenship for six persecuted minority communities such as Hinduism, Sikhism, Jainism and Christianity who arrived in India on or before 31st December 2014 from neighbouring countries such as Bangladesh. The Muslim Community is not added in the list and also there are chances where the illegal immigrants from other Faith's than Muslim Community are given Citizenship.

The Muslim Community is a persecuted minority group in our neighbouring countries such as Sri Lanka and Myanmar which are other religion majority countries, but these people are overlooked which shows a clear discrimination towards the members of Muslim Community. Also, the Act excludes Ahmaddiyas from Pakistan, and other people persecuted on the basis of religion such as Jews, agnostics and atheist. Thereby it fails the test of reasoning in regards with Art. 14 as the classification must be not be arbitrary, artificial or evasive , it should be based rational or reasonable nexus with the aims sought to be achieved by the statue in question and it violates Art. 14 as under this law a person is entitled to legal protection in all sphere of State activity as well as civil and

All persons similar circumstances shall be treated alike both in privileges and liabilities imposed23, the Muslim Community has to undergo Long legal process to prove that they are not illegal immigrants where as people of other Faiths are given Citizenship without much hurdles. The people of other faith are given a privilege over the Muslim Community even though their circumstances are similar as there are illegal immigrants from other communities and not just Muslim.

Herein, the State must stand to understand that the objective of CAA to protect minorities who are victims of religious minorities from the neighbouring countries does not stand to be fulfilled because it does not only discriminates against Muslims but also against the Muslim minorities

In the present scenario, the legislation has the clear classification, which after all, is only a mere means to achieve the ends of the desired objective by the government.

In NRC, the intelligible differentia does not exist, in the classification. Also, the act on which the entire process of NRC is based is arbitrary in nature. Therefore, the entire exercise is in violation of Art.14 of the Constitution.

It is to be seen that the third tier of classification is exclusion of the application of Section 6B to tribal areas of Metropolis, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the areas covered under "The Inner Line" notified under the Bengal Eastern Frontier Regulation, 1873 [hereinafter referred to as the excluded areas] representing the recognition of the Parliament of the constitutional and ethnic rights of the indigenous persons belonging to such areas. While Article 14 allows reasonable classification for the purposes of legislation it forbids any sort of class legislation.

The right to equality before law as per Art. 14 of the COI has been violated. Art. 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. There is an unreasonable classification, as the classification is not based on intelligible differentia.

It is to be read in the constitution that the right to equality is a basic feature of the Constitution and the parliament cannot transgress the principle of equality. Art. 14 says that there must be a reasonable classification between groups of people and that should have a nexus with the object sought to be achieved.

Therefore, no action of the State should be of arbitrary and irrational nature which distinguishes among individuals. The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statue in question. The principle of classification under Art. 14 has been the subject of deliberation in various cases. NRC creates a classification which is unreasonable and fails to satisfy the doctrine of reasonable classification.

It should'nt be arbitrary, artificial or evasive in any form. It should be based on an intelligible differentia, and there should be real and substantial distinction, which distinguishes persons or things grouped together in the section from others left out of it.

Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object or the classification itself is discriminatory, then an explanation that the classification is reasonable having a rational relation to the object sought to be achieved is immaterial. 31

In Budhan Chaudhary v. State of Bihar, which provides that:
  1. the classification proposed in the legislation must be founded on intelligible differentia and that;
  2. there must be close nexus between the classification and the object of the Act.
The NRC will force every individual to prove their citizenship to a govt. official. All of this is done without any credible information. Thus exercise is a clear instance of State action that is manifestly arbitrary. Art. 14.

The same is in violation of Art. 15 of Universal Declaration of Human Rights (UDHR), 1948, which declares that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality34. Also Art. 13 of the International Covenant on Civil and Political Rights (ICCPR), 1966 protects aliens who are lawfully present in a country from arbitrary expulsion.

In Maneka Gandhi v. Union of India, it was decided that the actions of State have to be examined on the verge of Art.14 of the Constitution. The ambit of Art.14 is broadened and the criteria to determine the arbitrariness of the executive have been laid down in EP Royappa v. State of Tamil Nadu that, when an act is arbitrary, it is implicit that it is neither

the test of arbitrariness has been laid down in the case of Natural Resources Allocation, Inre, Special Reference No.1of 2012,where it was said that, an action should be fair, reasonable, non- discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of equitable treatment and healthy competition then only it can pass the test of arbitrariness.

In the instant case, the same is in violation of Art. 14 of the Constitution since it gives the State arbitrary powers to exercise in relation of declaring a resident as citizen/non-citizen without prescribing for a fixed procedure, through the appointment of non-judicial members.

The Citizenship (Amendment) Act defies the secular fabric of the COI. It confers India citizenship based on religious identity. It resembles the Law of Return proclaimed by Israel in 1950 which grants Jews worldwide the right to come and live in Israel and to gain Israeli citizenship.

Likewise, the controversial Citizenship Amendment Act makes India an �Israel' for Hindu Community. The Citizenship (Amendment) Act 2019 gives a subtle incentive to those who believe in Non-Muslim religions and ipso facto extends a clear disincentive to those who believe in Islam. Thus, the Act violates Art. 25 of the India Constitution.

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