India is a country which is known for its diversity. It has tried to preserve the interest of people belonging to all religions by following the concept of secularism enshrined in the Preamble of the Indian Constitution. Unlike other countries, the concept of secularism is different in India. The word secularism does not mean "no religion"; rather, it means the liberty to practise, profess, and propagate any religion.
After the partition in 1947, two domains were formed - India and Pakistan. While Pakistan chose to be the Islamic Republic, India adopted the notion of secularism. The cultural harmony and the notion of secularism still prevail in the hearts of the Indian citizens. However, the actions of the politicians and those in power towards various minorities often dilute the concept of secularism. Due to this, there have been mob lynching, hostility, and disharmony between various cultural and religious groups. One such Act is the introduction of the Citizenship Amendment Bill, 2019.
A majority of the population criticised the Act passed by the Indian parliament, and there were widespread agitations all over the nation to show dissent. It was seen not only discriminatory, poisonous, and draconian but also against the basic structure of the Indian Constitution. The foundational policy of India embraces the concept of secularism, and this Act has been a violation of it. It has been noted that the CAA targets Muslims, i.e., India's largest minority community.
Citizenship Amendment Act, 2015, provided citizenship only on the following five grounds, i.e., by birth, descent, registration, naturalisation and incorporation of some territory into India. Article 14 of the Indian Constitution states that discrimination can only be based on "reasonable classification." The Indian parliament has presented the CAA, 2019, in the light of "reasonable classification", but it can also be seen as "class legislation" rather than "reasonable classification." Hence, the CAA,2019, is contended to violate Article 14 of the Indian Constitution. Moreover, it can also be seen as being violative of the foundation of the Indian Constitution, i.e., the Preamble. It has been noted that the proposed CAA is not in consonance with Articles 15, 25, 29, 30, 51C, and 253 of the Constitution of India.
The Citizenship Amendment Bill, 2019
The Citizenship Amendment Bill, 2019 (CAB, 2019) was initially introduced in the lower house of the parliament, i.e., the Lok Sabha, in the year 2016. The Lok Sabha passed it on January 8, 2018, which lapsed due to the dissolution of the 16th session of the Lok Sabha. Again, on December 9, 2019, it was presented in the 17th Lok Sabha by the Home Minister, Amit Shah. It was passed on December 10, 2021, and also got the consent of the upper house, i.e., the Rajya Sabha, on December 11, 2019.
The Bill modified the interpretation of the term 'illegal immigrant.' Before this Act, any person who lacked proper records to determine their citizenship was said to be an illegal immigrant. However, after the introduction of this Bill, people from Pakistan, Bangladesh, and Afghanistan belonging to the Hindu, Sikh, Jain, Parsi, and Christian communities would not fall under the ambit of 'illegal immigrant.'
According to the former Citizenship Act, all persons residing in India will become residents for at least 11 years. However, as per the current Bill, persons living in India for a minimum of 6 years will be granted the position of a resident.
The principal reason for the dissent by the people towards this Bill is that it creates a disparity amongst people based on religion. In the aforementioned Bill, the principle of citizenship is based on religion which goes against the interpretation of secularism. Certain groups of people also express that this Bill contradicts the existing substantive law. The disapproval of this Bill amongst the citizens of India was so prevalent that it resulted in massive protests across the nation. It has been said that this Bill disturbed the nation on communal grounds when the very essence of this nation is its cultural diversity.
The Citizenship Amendment Act, 2019: Challenging the Constitution.
Keeping the definition of citizenship laid down in State of West Bengal v Anwar Ali Sarkar, the current amended definition seems unconstitutional. Article 14 of the Indian Constitution lays down the principle of both reasonable and rational classification. It is imperative that such classification needs to have a reasonable nexus with the objective sought to be achieved by the legislation. In simple words, there is a twin prerequisite for rational classification to fulfil the guidelines of Article 14, and this was overlooked in this discourse.
In the above case, it was held that "Article 14 forbids class legislation in sense of making improper discrimiation by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation."
The BJP government justifies this discrimination by saying that Muslims did not come to India due to persecution, whereas people of other religions did.
The CAA, 2019, is severely dangerous for India's unity, diversity, and secular identity and violates the Basic Structure doctrine propounded by the Supreme Court of India in the landmark case of Kesavananda Bharati 1973. Hence, it should be ultra-vires ab-initio. The UNHRC says that the Act is fundamentally discriminatory as the basis of Article 14 is that equals must be treated equally.
The CAA vs the NRC
The National Register of Citizens (NRC) was last renewed on March 24, 1971. It is a document that distinguishes people who entered Assam illegally from Bangladesh after 1971. The candidates have to present the records to verify that their names were present in the NRC, 1951 or any constituent records of Assam till 1971.
Indeed, the CAA and NRC share a connection as all the residents enrolled under the Bill will acquire citizenship. The only deception here is that it talks about registration based on an individual's religion, whereas no such clause is mentioned in the NRC.
The CAA versus the Assam Accord
The legal challenge imposed against the CAA by the people of Assam is that it is contradictory to the Assam Accord, 1985.
In 1985, the Citizenship Act was amended to give effect to the Assam Accord. The Assam Accord was an agreement struck between the government of India and leaders of the "Assam Agitation," which took place between 1979-85 to protest voting rights being given to illegal immigrants in Assam.
The Assam Accord said that people who migrated to Assam before January 1, 1966, would be granted citizenship. "The persons of Indian origin who arrived in Assam on or after January 1, 1966, but before March 25 1971 (i.e., the date on which the Bangladesh War commenced), and resided in Assam since then, if detected to be foreigners, were to get all rights to Indian citizenship except voting rights for ten years, and even voting rights after that."
The All Assam Students' Union stated that the CAA defeats the fundamental objective and purpose of Section 6A of the 1955 Act.
Rule 8 of the Citizenship Rules, 2003
Rule 8 of the Citizenship Rules, 2003 states that anybody whose name is not included in the NRC will not be handled as a foreigner. He has the power to appeal.
The period for application is 60 days which was increased by 12 days by the State Government.
To whom does the CAA apply?
It applies to any Hindu, Sikh, Jain, Buddhist, Parsi, and Christian foreigner who has migrated from Pakistan, Bangladesh, and Afghanistan into India till 31.12.2014, on account of persecution they face due to their religion.
It does not apply to any other foreigners, including Muslims migrating to India from any country, including these three countries.
The CAA, 2019 does not pertain to the seven sisters, i.e., the North-Eastern states of India - Assam, Arunachal Pradesh, Meghalaya, Mizoram, Manipur, Nagaland, and Tripura.
This Act has been very controversial and has received much condemnation along with appreciation from respective groups. The CAA, 2019, is being seen as a draconian law that is violative of the principle of secularism. In the author's opinion, the abovementioned law legitimises discrimination by dividing the alleged migrants into Muslims and non-Muslims. It, explicitly and blatantly, seeks to enshrine religious discrimination into law, contrary to the principle of secularism expressly stated in our Indian Constitution. It is also violative of the basic structure of the Indian Constitution observed in the Kesavananda Bharati case. This Act divides the people based on their beliefs which again is contradictory to our Constitutional ethos.