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A Critical Analysis On Citizenship Amendment Act, 2019

The citizenship Amendment Act 2019, which has been passed as bill by obtaining majority from both the houses of the parliament on 11th December 2019 and The same was given assent by the Hon'ble President of India Mr.Ramnath Govind on 12th of December 2019 by which the bill had attained the status of the Act and came into effect on 20th of January 2020. This contemporary amendment has been brought to the Citizenship Act, 1955 which was previously amended on 2003.

In this paper, I am going to share my thoughts on this Amendment as an academician and as a practicing Lawyer, various school of thoughts on the hypothesis that the Amendment brought in the act is abridging the rights and privileges, which has been guaranteed and granted by the Constitution of India from 1950. The criticism over the amendment, which approves or grants citizenship to refugees and migrants based on a particular sect. To begin with, I would like start with the famous quote of our Father of nation Mahatma Gandhiji about religion and state welfare;

If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it. The state would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your or my religion. That is everybody's personal concern![i]

Amendment and Amnesty

The Citizenship Act, through this amendment as introduced a proviso under section 2 (1) (b) the verbatim of the same is hereunder as follows:
Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;.

This amendment has provided an official amnesty to the person who are all the refugees or migrants, belonging to Hindu and the so called Sub sects of Hinduism namely Sikh, Buddhist, Jain, Parsi or Christian community from the neighboring countries of India on or before 31st day of December 2014.

It is pertinent to point out that the previous mandate of residency requirement period was reduced as 5 years in spite 11 years. The entire agitation, commotions and the confusions which has been happening all around the country because of the amendment which has been introduced distressing the sentiments of the Muslims who were having predominant role and population in our country.

The whole country and the persons belonging Muslim community were put utter shock, surprise and distress. Many representatives of pressure groups had challenged the validity of the aforesaid act by stating that it is ultravires of the Constitution of India. This Major issue has yet to be decided by the Apex Court.

This is considered as the first move, from soil to blood as the basis of citizenship, from a jus soli or birth based principle of citizenship in the direction of a jus sanguinis or descent-based principle, and second, a shift from a religion-neutral law to a law that differentiates based on religious identity. From the perspective of India's social fabric, they signal an ominous fraying and unravelling of what was a daring and moderately successful experiment in pluralism and diversity.[ii]

India's Secularistic Ethos

It is not suffice, to mention that the our country is a secular state as envisaged under the Preamble of the Constitution of India, it declares that our country is a sovereign, socialist, secular and democratic republic.

The objective of the same is to secure justice, liberty and equality among all the citizens of this Country. Thus, this amendment providing amnesty to the refugees and migrants of Hindu's, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan is completely contravening the Basic structure and the fundamental rights of the Constitution of India, which is guaranteeing equality among all the Citizens in our country. Our Country has a glorious secularistic ethos and on several occasions the people have been showing the expression of harmony Unity In Diversity.

While disposing of a writ petition seeking permission to hold public meetings condemning the Citizenship Amendment Act, 2019, before the Madurai Bench of Madras High Court, Justice GR Swaminathan observed:
No one can dispute that the issue raised by the petitioner is being debated at all levels at present. Writ petitions have been filed in the Supreme Court. Articles are being written both for and against. Leaders and intellectuals are taking positions.

While Harish Salve finds nothing discriminatory in the amendments, Suhrith Parathasarathy calls it unconstitutional. India being a vibrant and functioning democracy ought to allow both to articulate their respective sides. The authorities ought not to forget that Article 19 of the Constitution of India confers the right to freedom of speech and expression and the right to assemble peaceably and without arms. These fundamental rights, of course can be subjected to reasonable restrictions laid down in Article 19(2) and (3) of the Constitution of India but not more or beyond.[iii]

The Hon'ble Home Minister of our country Mr. Amit Shah as stated that, The process of NRC will be carried out across the country. No one irrespective of their religion should be worried. There will be absolutely no discrimination.

This process of National Register of Citizens as aforementioned will take note of the names of the refugees and migrants from the neighboring countries, the persons falling under the six sects will be considered as Citizens because they were persecuted as minorities by the neighboring Islamic states.

This process of NRC for Muslim refugees and migrants will apply the test that they were residing in India before 25th of March 1971 and the people whomever names were missing the register can approach the Tribunals constituted to prove their Citizenship otherwise they will be considered as illegal migrants and eventually will get deported. This how the process of NRC will be done without any discrimination as envisaged by the Hon'ble Home Minister.

Judiciary's Latest View On Approving The Citizenship

In this part I am going to discuss about the various Gauhathi High court's and foreign court's judgement on approving the Citizenship, which has been delivered after the amendment came into effect.
  • Noticing that a Foreigner Tribunal had declared a person as 'foreigner' without serving noticing on him, the Guahati High Court intervened to set aside that order.
    Sahinur Islam vs Union of India [iv]

    The writ petition filed before the Guahathi High Court against the ex parte order passed by Foreigners Tribunal, Jorhat on April 6, 2010.The petitioner, Sahinur Islam, submitted that the order was passed without serving notice on him. The order came to his knowledge only in July 2019, during the NRC hearing. The HC perused the records of the case and noted that the notice issued to him on February 5, 2010 was returned unserved as he was not available in the given address.

    Having regard to the admitted fact that service of notice was not effected in any manner on the petitioner, as required to be done under Paragraph 3(5) of the Foreigners (Tribunals) Order, 1964, we are of the view that the petitioner was denied opportunity of hearing to contest the case on merits, held the division bench comprising Justices Manojit Bhuyan and Parthivjyoti Saikia
  • The Guahati High Court has come down on a Foreigners Tribunal for declaring a person as foreigner, despite his parents being declared as Indian Citizens by other orders.
    Pratap Sakharu Vs. Union of India and 3 others[v]

    On January 25, 2019, Foreigners Tribunal at Dhemaji in Assam declared 26-year old Pratap Sakharu as foreigner of post-1971 stream as per the Assam Accord. He had produced six documents before the Tribunal, including an order passed by another Foreigners Tribunal in 2012 declaring his father Bahadur Sakharu as Indian citizen.

    Challenging the order, he filed writ petition in the High Court. Taking note of this, the HC bench comprising Justices Manojit Bhuyan and Pathivjyoti Saikia observed:
    In this case, there is no dispute that Bahadur Sakharu, the father of the petitioner, was declared as an Indian by a Tribunal on 30.11.2012. In this court the petitioner has filed a certified copy of another opinion given by a Foreigner Tribunal, Dhemaji on 25.01.2019, whereby, Lakhi Sakhar, the mother of the petitioner, was declared an Indian. If father and mother are both declared Indian by Foreigner Tribunals then we find ourselves foreclosed against all options, but to hold that the petitioner is also an Indian citizen. The HC held the opinion of the Tribunal to be unsustainable in law and quashed it.
  • The Guahati High Court has upheld a declaration that a woman was a foreigner by holding that the documents such as school certificates should be proved by the testimony of the issuing authority.

    Sahera Khatun Vs. Union of India and 6 others[vi]
    The Court was considering a writ petition filed by one Sahera Khatun, stated to be aged 42 years, challenging the order passed by Foreigners Tribunal Kamrup on December 1, 2018 declaring her to be a foreigner in the post-1971 stream as per the Assam Accord.

    One Mafidul Islam, projected as brother of the petitioner and one Jaytun Nessa, projected mother of the petitioner gave oral evidence.The Court noted that the only documents showing the linkage of petitioner with her projected parents and ancestors were the school certificate and certificates issued by the Gaonburahs of Laruajan and Kanhara villages. These documents were held to be inadmissible in evidence by the Court on the ground that their contents were not proved by the issuing authorities.
    The testimony of the projected brother was discarded by saying that oral evidence, without supporting documents, cannot prove citizenship. The projected mother had not turned up for cross-examination, noted the Court.

    We would observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship, observed by the division bench of Justice Manojit Bhuyan and Parthivjyoti Saikia. The Court said that the petitioner had failed to discharge the burden to prove citizenship as per Section 9 of the Foreigners Act and dismissed the writ petition. In the similar footing the Guahathi High court had decided the Writ petition filed by Rabia Khatun Vs. Union of India and 5 others[vii] and upheld the decision of the Tribunal declaring the Petitioner as foreigner.
  • The Gauhati High Court has observed that proof beyond all reasonable doubt is not needed in Foreigners Tribunal for establishing citizenship.
    Idrish Ali Vs. Union of India and 5 others[viii]

The Court held so while allowing a writ petition filed by 65-year old Idrish Ali to set aside an order passed by Foreigners Tribunal Jorhat which declared him to be a foreigner. Before the Tribunal, the petitioner had produced 11 documents, including the voters lists of 1985 and 1989 which had contained his name. The Tribunal discarded these documents, observing that the petitioner was not included in the voters list of 1974 and 1975. Hence, the Tribunal held that he could not establish linkage prior to 1971.

In the HC, a division bench comprising Justices Manojit Bhuyan and Parthivjyoti Saikia criticized the approach of the Tribunal. The HC observed that strict rules of evidence are not applicable to Foreigners Tribunal.

The Tribunal is established for quick disposal of the matters sent to it. Unlike a regular Court, the laws of evidence are not strictly applicable in a Tribunal, the bench observed.
The Court referred to the differences between Tribunals and Courts explained by the Supreme Court in the decision Union of India Vs. R. Gandhi.[ix]

Reverting to the case in hand, the strict rules of evidence are not applicable in a tribunal. Nothing is required to be proved beyond all reasonable doubt, the Court observed. The Court proceeded to hold that the observations of the Tribunal pertaining to voters lists was perverse and cannot be sustained. While asking the Tribunal to take a fresh decision on merits, the HC also ordered that Idrish Ali, who was kept in Jorhat Detention camp, should be produced before the Tribunal on the next hearing date. The Court added that he would be at liberty to apply for bail before the Tribunal on his production.

In this part I am going to bring out the thoughts of other country and Indian's who are all strongly condemning the amendment and claiming it to be violative of the Articles and the Fundamental Rights of the Constitution of India,1950. The Foreign Countries around globe have shared their condemnation for abridging the Secularistic ethos which our country was owning for a very long time.
  • Neelanjan Sircar, assistant professor at the Ashoka University and visiting senior fellow at the Centre for Policy Research had said,
    Clearly, none of it has been thought through, These moves are for some electoral or positional gains. This is going to be a massive mess.[x]
  • Pratap Bhanu Mehta, one of India's most prominent political scientists said that,
    The citizenship bill is the first legal articulation that India is, you might say, a homeland for Hindus,. Mehta believes the measure violates the Indian constitution, which guarantees equal rights before the law to all people within the country.[xi]
  • Anand Sharma, a leader of the opposition Congress party, said in Parliament that
    The bill runs counter to India's foundational values, It hurts the soul of India. For some in India, the citizenship legislation is a sign of the profound changes sweeping the country and a cause for deep sadness.
  • The U.S. Commission on International Religious Freedom has described that,
    The Legislation is a dangerous turn that runs counter to India's rich history of secular pluralism. It called upon Congress and President Trump to consider sanctions against Mr. Shah if the measure became law.[xii]
  • Delhi-based lawyer Gautam Bhatia says that,
    By dividing alleged migrants into Muslims and non-Muslims, the bill explicitly and blatantly seeks to enshrine religious discrimination into law, contrary to our long-standing, secular constitutional ethos.
  • Historian Mukul Kesavan says that,
    The bill is couched in the language of refuge and seemingly directed at foreigners, but its main purpose is the delegitimisation of Muslims' citizenship.[xiii]

India is the second largest Muslim country and the people of our country irrespective of caste, creed and religion are living in peace and prosperity, even there were some differences among them time and then. The father of our nation, the framers of our Constitution and the freedom fighters who sought for the independence of our country wanted our country to be a secular country without any discrimination and persecuting any religion, that's the reason the draftsmanship of the Constitution of India, 1950 have been very cautious in emphasising the secularistic ethos by adding it to the preamble of the Constitution and treating it as the Heart and soul of the Constitution.

This amendment to the Citizenship act, persecuting the people of Muslim community under the guise of majority community of the neighbouring Islamic states, which runs completely in contrary to the Articles relating to citizenship, preamble and fundamental rights of the Constitution of India, 1950. Morefully, the Foreigner's Tribunal and the Hon'ble High Court's contradictory views in appreciating the evidentiary value of proving the Citizenship had created fear and dismay, in the minds of people who had believed in the secularistic feature of our country for years. The protest which has been happening all over the country against the amendment, irrespective of religion by professing the fundamental right guaranteed to them, brings out the irresistibility over the amendment.

All over the globe, our country has it's glory for the secularistic ethos and now this present amendment has brought unpleasantness among the globe. This amendment particularly approving Hindu's, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan needs to reviewed and reconsidered in delegitimatizing the Muslim migrants and refugees. Now, this delegitimatizing happening to the Muslims will be a grave threat to the harmony and the secularistic accord among the Citizens of our country.

The recent Delhi Riots and Violence, which caused 32 deaths and around 200 injured had created an immense threat and insecurity among the people, the then Delhi High court Hon'ble Justice Mr.S Murilidar had condemned the overtact, as an obiter dictum that:
We cannot let another 1984-like event happen in this country and asked the government - at the centre and in Delhi - to work together to combat unrelenting violence that hit parts of the national capital.[xiv]

From all these observations my humble suggestion would be that the present amendment approving the particular sect which is highly unwelcoming not only by Muslims and also people from various sects having faith and belief in unity and Secularism. With loads of faith and belief on the Hon'ble Supreme Court being the guardian and Saviour of the Constitution of India, 1950 which has been enshrining Justice from Keasavananda Bharathi till Aadhar, will also enshrine justice in deciding the constitutional validity of the aforesaid amendment act.

  1. David Hardiman Gandhi in his time and ours The Global Legacy of his Ideas, Hurst and Company, London, page 158
  3. WP(MD).No.5399 of 2020 dated 12.03.2020
  4. WP(C).No.7818 of 2019 dated 28.02.2020
  5. WP(C).No.6594 of 2019 dated 19.02.2020
  6. WP (C).No.7482 of 2019 dated 17.02.2020
  7. WP (C).No.6369 of 2019 dated 28.02.2020
  8. WP (C).No. 4116 of 2019 dated 27.02.2020
  9. Civil Appeal.No.3067 of 2004 dated 11th May, 2010

Written By: S Nirmal Aditya, Ba.Ll.B., (Hons) Ll.M.,
Partner, AandN Care Solicitors (Advocate High Court Madras)  

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