Busting the Myth: The Constitutionality of The Citizenship (Amendment) Act, 2019

Author:

Abstract

The Citizenship (Amendment) Act, 2019 (CAA) was an amendment to the Citizenship Act, 1955 which looked to provide express citizenship to those belonging to the religious minority communities of Pakistan, Afghanistan and Bangladesh. The Act states that immigrants who are Hindus, Buddhists, Sikhs, Jains, Parsis and Christians and have migrated to India fearing religious persecution on or before December 31, 2014 will be granted citizenship through registration or naturalization. Since the Act makes a classification on religious grounds, excluding the Muslim immigrants from the relaxation of restriction to obtain citizenship, there have been claims that the Act is opposed to the Constitutional principles of Secularism and Equality and Fundamental Rights guaranteed under Articles 14,15 and 21. This paper seeks to assess the constitutional validity of the CAA. It first delves into the historical development of the law relating to citizenship of immigrants belonging to the said religious minorities. It then elucidates the various provisions of the CAA and examines their conformity with Constitutional principles and provisions. It expounds the adherence of the act to the Indian ideals of Secularism. It tests the provisions against the Doctrines of Reasonable Classification and Arbitrariness established under Article 14. The paper further reviews the applicability of Articles 15 and 21 to Muslim immigrants. The paper seeks to highlight the importance of the amendment and the necessity to identify and differentiate citizens and non-citizens. The researchers have adopted a doctrinal method of research. Both primary and secondary sources such as judgements, international conventions and journal publications have been examined in order to put forth a comprehensive analysis of the constitutional validity of the CAA.

Keywords- Citizenship (Amendment) Act, 2019, Constitutionality, Persecuted Religious Minorities, Article 14, Secularism.

Introduction

The Citizenship (Amendment) Act, 2019 (‘CAA’) was a historic amendment to the Citizenship Act, 1955 passed by the Narendra Modi led NDA government on December 11, 2019 and brought into force on January 10, 2020. The CAA was one of the primary promises made by the Bhartiya Janata Party (BJP) in their election manifesto before the 2019 General Elections. This enactment is a historic step because it is the first time that religion has been listed as a fundamental criterion for determining the eligibility for citizenship.

The CAA looks to provide immigrants belonging to religious minorities in the theocratic nations of Afghanistan, Bangladesh and Pakistan with citizenship in light of the persecution these minorities face in the aforementioned Islamic nations. These minority communities include Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians (‘classified communities’). In India, citizenship may be obtained by birth, descent, registration, naturalization or incorporation of territory. Under the CAA, the provisions for acquisition of citizenship by those belonging to the classified communities by way of registration and naturalization have been relaxed. However, the CAA does not provide citizenship to all those immigrants who have fled to India fearing religious persecution but restricts its application to only those immigrants who have entered the country on or before 31st December 2014.

As a result of classification made based on communal lines, along with the fear of the implementation of the National Register of Citizens (NRC), there has been a growing apprehension that these amendments are directed at denying citizenship to Muslims and the deportation of Muslim immigrants. It has been argued that the CAA is unconstitutional for being violative of the basic principles of Secularism and Equality enshrined under the Preamble as well as Articles 14, 15 and 21 of the Constitution of India.

This paper firstly seeks to trace the historical development of the relaxation of citizenship provisions for the classified communities which led to the enactment of the CAA. It then elucidates the various amendments made to the Citizenship Act, 1955 by the CAA and examines the constitutionality of those provisions in light of the principle of secularism and Articles 14, 15 and 21.

Historical Background

Having witnessed the atrocities committed against non-Muslim minorities, the Congress Working Committee in 1947 recognised the need to protect and provide citizenship to these refugees migrating from Pakistan during the partition of India on religious grounds. Subsequently, the Heads of Government of India and Pakistan entered into the Nehru-Liaqat Agreement in 1950, requiring both nations (including East Pakistan, now Bangladesh), to ensure that religious minorities in their respective nations were safeguarded. While this Agreement was adhered to by the Indian Government, effort was lacking on the side of the Pakistani Government, which came to light in 1963, after the theft of the relic of Hazratbal Shrine in Jammu & Kashmir. The incident provoked communal violence in the state as well as in East Pakistan, resulting in the loss of life and property to the minority communities, which began to flee to Assam, Tripura, and West Bengal as refugees. In the course of debate in the Lok Sabha, the then Home Minister, Shri Gulzari Lal Nanda asserted that if Hindus in Pakistan could not be guaranteed equal status, security and safety, India could not take a constitutional view and turn a blind eye to the sufferings of people that were closely connected, by blood and relation, to this nation. Following this, numerous actions were taken by the Ministry of Home Affairs to relax the restrictions on the influx of minorities facing religious persecution, not just in Pakistan and Bangladesh, but also in Afghanistan. Taking into consideration the special circumstances of migration due to persecution faced by these religious minorities in these theocratic nations, the Ministry made provisions to facilitate Long Term Visas.

Gradually, these communities began to be recognised as a special class in matters of citizenship, beginning with the Standing Committee’s 107thReport on the Citizenship Amendment Bill, 2003, which acknowledged that persons in neighbouring countries facing religious persecution deserved favourable considerations. Notwithstanding governmental and diplomatic efforts, there was widespread discrimination, maltreatment and atrocities being committed against non-Muslim minorities in the theocratic states of Pakistan, Bangladesh, and Afghanistan.

A landmark step was the 2015 amendment to the Passport (Entry into India) Rules, 1950, which exempted persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities, coming from Bangladesh, Pakistan, and Afghanistan (added in 2016) due to religious persecution or the fear of religious persecution, on or before December 31, 2014, with or without valid documentation, from the penal provisions of the Act. Additionally, several instructions were issued by the Ministry of Home Affairs to State Governments and other concerned authorities to make special provisions for the entry, long-term stay, and acquisition of citizenship by immigrants from these communities, coming from the specified countries.

Prior to the milestone, i.e., the CAA, the Joint Parliamentary Committee set up in 2016 in its Report had found that these minorities were being subjected to severe atrocities in the specified nations—they were forced to convert to Islam, made to wear Islamic apparel, forced to study Islamic teachings, and speak their language. Hindus were being suppressed—they had no representation in government services, no facilities to practice their religion, and often fell victim to snatching, theft, dacoity and kidnapping. Relying on this Report and its recommendations, the Citizenship (Amendment) Bill, 2019 was introduced and subsequently passed by the Parliament and received Presidential assent.

The Citizenship (Amendment) Act, 2019

The CAA was enacted in order to remove the status of “illegal immigrant” to those persons who were already exempt from penal sanctions of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. The Act was enacted by the Parliament by virtue of its power under Article 11, empowering the Parliament to make laws on matters of citizenship, read with Article 246(1) which provides for “citizenship” to be a subject in Entry 17 of the Union List. The Act amended Sections 2, 6, 7, 18, and the Third Schedule of the Citizenship Act, 1955. Section 2(1)(b), which defined “illegal immigrant” was amended to include a proviso for persons belonging to the said communities, that had come into India from the said countries, on or before December 31, 2014, who had earlier been exempted from the penal provisions of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920, to be excluded from the definition. Section 6B was inserted in order to make special provisions for these persons, as excluded from the definition of “illegal migrant” under Section 2(1)(b). They can now be granted a certificate of registration or naturalisation, subject to the qualifications mentioned under the Third Schedule. The Third Schedule provides for the various qualifications that one must fulfil in order to become a citizen through naturalisation. The amended Third Schedule contains a proviso for persons of the specified communities to provide proof of residence or service in the Indian Government for five years, instead of the eleven that is applicable to other immigrants. Furthermore, Section 18 was amended to allow the Central Government to provide for the conditions, restrictions, and manner for granting a certificate of registration or naturalisation for persons included under Section 6B.

The Act also provides that these amendments are not applicable to “The Inner Line” as provided for by the Bengal Eastern Frontier Regulations of 1873 for the protection of tribal regions in the Northeast. Section 7D was amended to allow for cancellation of the registration of Overseas Citizen of India Cardholders on violation of provisions of the Citizenship Act or any other law, as specified by the Central Government, after giving them a reasonable opportunity to be heard.

Constitutional Validity of the CAA

India adheres to the principle of constitutional supremacy, which entails that the Constitution is the supreme law of the land possessing a special legal sanctity and no legislation or act of Parliament can be violative of its provisions or the principles it enshrines. If any enactment or action of the State is ultra vires the Constitution, it may be declared void by way of judicial review. Therefore, it is imperative that legislations such as the Citizenship (Amendment) Act, 2019 pass the tests of constitutionality.

1. Secularism

The Preamble of the Constitution states that India is a secular nation and the Judiciary has recognised this principle as a part of the Basic Structure of the Constitution. A secular State is one that has no official religion of its own and treats all religions equally, while only concerning itself with the relationship between man and man, rather than man and God. However, in India, secularism also involves the interference of State in religious affairs in order to safeguard religious and caste-based minorities and their fundamental rights. By acknowledging that persecution on religious grounds persists in particular neighbouring theocratic States against the religious minorities, the Act is in consonance with the Indian ideals of secularism. In the specified countries, where religious minorities have been historically discriminated against, where secular values are not imbibed in legal and administrative frameworks, and religious persecution is methodically carried out, the Act provides protection to these minorities and reaffirms India’s commitment to the principles of secularism.

It is a misconception that the CAA is unsecular and thus opposed to the Basic Structure of the Constitution because it does not provide citizenship to persons of the Muslim community. The amendments merely provide certain qualifications for citizenship for the classified communities based on reasonable justifications, not withholding the right of the Muslim community to obtain citizenship through the ordinary means provided in the Act. Moreover, these qualifications are only applicable up to a cut-off date and there is no blanket open-ended guarantee of citizenship provided to even the classified communities.

2. Article 14

It has been alleged that the exclusion of those belonging to the Muslim faith under the CAA is violative of the right to equality under Article 14 of the Constitution of India as there is no reasonable classification and that the CAA is a class legislation. It is further alleged that the CAA discriminates against those belonging to the Islamic order on the grounds of religion. The violation of Article 14 would also entail that the CAA is violative of the Basic Structure of the Constitution, a doctrine established in the Kesavananda Bharati case since such a violation would threaten the secular fabric of the nation.

The Constitution of India guarantees to every individual equality before the law and equal protection of the law. Justice Thommen in his judgement in Indira Sawhney v. Union of India recognized the importance of the right to equality and stated that, “Equality is one of the magnificent cornerstones of the Indian democracy.” The right to equality enshrined under Article 14 lays down that the State cannot discriminate between persons through state action; otherwise such a State action becomes void in light of the fundamental right guaranteed under the article. However, Article 14 only forbids class legislation, not reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. It was laid down in the case of R.K. Garg v. Union of Indiathat such classification cannot be arbitrary and must be rational. Therefore, a classification must satisfy the Doctrine of Classification and Arbitrariness to be in compliance with Article 14—it must be founded on an intelligible differentia which distinguishes those that are grouped from the others; and such differentiation must have a rational nexus with the objective sought to be achieved by the State action.

This amendment to the Citizenship Act, 1955 makes two classifications—of the classified communities and the specified theocratic nations. The classification of immigrants has been made into those belonging to the specified communities, i.e., non-Muslim minorities and those who are Muslims. The former are religious minorities of the theocratic nations of Pakistan, Bangladesh and Afghanistan while the latter belong to the majority religion of the three nations to whom the amendment is not applicable to, i.e., Islam. This classification has been made based on the historic fact that these specified communities are numeric and religious minorities that have faced religious persecution in those nations for decades, as a result of which they have sought refuge in India. These communities have always enjoyed a special status in matters of immigration and citizenship. Additionally, these communities are closely related to Indian nationality as their religions have a history within the territorial landmass of India.

The statement of objects and reasons of the CAA recognizes that people belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced severe persecution on the basis of their religion and felt the threat of persecution due to the obstruction of the right to peacefully practice, profess and propagate their respective religions. These issues have led to people of the aforementioned minorities fleeing to India to seek shelter and continuing to stay even after their travel documents have expired, while in certain cases they have incomplete or no documents at all. The Amendment aims to provide safeguards for these persons as many of them have no or incomplete documentation and are not eligible to apply for Indian citizenship under Sections 5 or 6 of the Citizenship Act. Protection is simply a relaxation given to persons belonging to the specified communities in those countries and speeds up the process of acquiring citizenship for them.

Those opposing this Act also claim that there is persecution of certain minoritiy communities within Islam, such as the Ahmadiyyas in Pakistan and Hazaras in Afghanistan. The jurisprudence in their case, however, is completely different as it falls out of the legislative ambit of the Parliament of India. Islam is the state religion of Afghanistan, Pakistan and Bangladesh and any intra-religious disputes do not constitute ‘religious persecution’ but rather become the subject matter of internal State governance of those nations. Since the grounds for differentiation under the CAA is religious persecution, intra-Islamic disputes cannot come under the aforementioned Amendment. Therefore, one can reasonably conclude that, there is in fact, a reasonable nexus between the classification and the objective sought to be achieved by the CAA.

Another classification made is the identification of the three theocratic neighboring States of India, i.e., the People's Republic of Bangladesh, the Islamic Republic of Afghanistan and the Islamic Republic of Pakistan. These nations have recognized Islam as their State-religion and have been historically known to condone religious persecution of the specified communities. Their identification is thus not arbitrary and has been made with the view to protect their religious minorities and is thus in consonance with Article 14.

Having put the CAA through both, the test of reasonable classification and arbitrariness, one can conclude that the classification is founded on an intelligible differentia and that such differentiation has been formed in pursuance of the objective sought to be achieved by the Parliament. It is thus not a class legislation and is not violative of Article 14 of the Indian Constitution.

3. Article 15

Article 15 of the Indian Constitution restricts the state from discriminating against any citizen on the grounds of religion, caste, creed, race, sex, place of birth, or any of them. The aforementioned Article also prohibits the subjection of a citizen to any disability on the basis of those grounds. The Article is an extension of Article 14 in the sense that it expresses a particular application of the general principle of equality laid down in Article 14.

The claims that the CAA violates Article 15 of the Constitution of India are invalid and unfounded. Unlike Article 14, Article 15 is not a universal right which can be availed by any individual who is situated within the territory of India. Therefore, this Fundamental Right can only be availed by the citizens of India and not by those who aspire to obtain the citizenship status. This means that the application of the aforementioned provision cannot be extended to the immigrants residing within the territory of India unless they obtain citizenship.  Therefore, since Article 15 finds no application to those excluded under the said Amendment, there is no scope for the violation of the aforementioned provision.

4. Article 21

Article 21 provides for the protection of life and liberty or all persons, which may only be taken away through a procedure established by law. This Article is thus applicable to illegal immigrants residing in India as well. There have been numerous claims about the CAA affecting the rights of persons who are classified as illegal immigrants, which will result in their expulsion, deportation or refoulment from the country. While the Article protects the right to life and liberty, the right against expulsion, deportation or refoulment arises from liberties enshrined under Article 19, which provides for the right to reside in any part of the country. The liberties under Article 19 can only be claimed by citizens and therefore, cannot be claimed by illegal immigrants. The State is entitled to expel foreigners if it deems fit and there is no bar on this power. Furthermore, the CAA contains no provisions for the expulsion of illegal immigrants and only relaxes the qualifying criteria for immigrants of the classified community up to the cut-off date to obtain citizenship.

These allegations have been a result of the insertion of Section 14A of the Citizenship Act, 1955 which was introduced in 2004 and provided for a National Register of Citizens (NRC). However, this provision only elucidates the procedure to be followed in the preparation of the NRC and the authority responsible for the same. The preparation of an NRC is within the exercise of a sovereign country’s rights in order to distinguish citizens from non-citizens. Despite the amendment, illegal immigrants not belonging to the specified communities may avail citizenship in the manner enumerated in the Act and the amendment does not affect this right of theirs.

Conclusion

The CAA is not ultra vires the Constitution of India for breaching the principle of secularism, Article 14, 15 or 21. It is in consonance with the Indian ideal of secularism as it protects the interests of religious minorities. It is not violative of Article 14 as it identifies the specified communities and the theocratic nations of Pakistan, Bangladesh and Afghanistan based on valid legal justifications and an intelligible differentia. It is not violative of Article 15 as illegal immigrants belonging to the Muslim faith and residing in India are not citizens and thus, are not entitled to protection under Article 15. And lastly, the Act is not violative of Article 21 as the right against expulsion, deportation or refoulment has not been violated by the Act.

It is vital to note that the implementation of the CAA does not impact the citizenship status of those who have already been granted citizenship. This amendment further does not prohibit Muslims from the said nations from applying for citizenship. It merely means that such people have to go through the standard process of naturalization or present their case in front of the established Foreign Tribunal. The position of foreign Muslims remains unchanged by the Amendment as it is only a relaxation to foreign persons belonging to the specified communities coming from the specified nations within the specified time frame.

Furthermore, the identification of illegal immigrants is vital to protect the nation’s interest. Reports from governmental agencies have conclusively proven that states like West Bengal and Kerala have some of the highest number of illegal immigrants who are availing several benefits meant for the poor Indians such as Mahatma Gandhi National Rural Employment Guarantee Act, Mid-Day Meal Scheme, and other such schemes. The sharp increase in the number of illegal immigrants in India, has been a great drain on the economy of the country, with such immigrants availing schemes meant for the poor Indian and also inadvertently robbing them of employment and other such opportunities. Unless these immigrants are identified and rooted out of the country, no number of welfare schemes can help improve the economic status of the financially weaker section of Indian society.