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:
2(b) illegal migrant means a foreigner who has entered into India:
- on or after the 26th day of January, 1950, but before the 1st day of
- 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;
- on or after the commencement of the Citizenship (Amendment) Act, 2003 (6
of 2004), where:
- both of his parents are citizens of India; or
- 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
- 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
- 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
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.
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)
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
and to secure to all its citizens Justice
economic and political; Liberty
of thought, expression, belief, faith and
of status and of opportunity; and to promote among them all
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
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
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
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
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
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
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
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
. 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
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
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:
- the classification proposed in the legislation must be founded on
intelligible differentia and that;
- there must be close nexus between the classification and the object of
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
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.