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The Citizenship (Amendment) Act, 2019

As The citizenship Amendment Act, 2019 has created a lot of controversies, this paper seeks to address the concerns of the people who do not support it and who have opposing views.The paper runs in a sequence, starting from the times of partition and the main reason behind it. The CAA is correlated with the reason behind partition being religion and this paper is a timeline showcasing how it became necessary for our country to make changes in The Citizenship Act, 1955 and to protect religiously persecuted minorities.

The paper continues to derive the constitutional validity of the act with regard to Article 14, 21, 25-28. It further reveals how vote bank politics played a major role behind influencing a majority of people to oppose the act. Overall, the paper tries to target the group of people who oppose the implementation of the act and tries to manifest that the act is harmless and does not prefer any one community over the other. This paper is just a personal view on CAA, 2019.

Background
The independence is related to the amendment of the Citizenship (Amendment) Act, 2019 herein referred to as the CAA. In 1947, when India got independence, the basis of partition was religion. While both the countries i.e India and Pakistan assured for no state-sponsored religion, India honored its commitments while Pakistan became a theocratic state with Islam as its state religion.

People who could not migrate to India due to certain reasons were promised not to be persecuted on basis of their religion in Pakistan as stated in the Liaquat- Nehru Pact which was signed in 1950. The pact significantly focused on the advancement and betterment of the minorities but since Pakistan did not honor its commitments, religious persecution followed, and hence, the minorities were left with no other decision but to migrate illegally to India.

To everyone's surprise, even the reports which were prepared by India discussing migration, classified people based on religion as Muslims and non-Muslims primarily because of the situation that prevailed in Pakistan. The situation of minorities has only worsened with time even before the partition, as per the Joint Committee Report, nearly 5 lakhs non-Muslims crossed over to the Indian Union before 15th August 1947.

Further, the report states approximately 30,18,957 numbers of non-Muslims evacuated up to the end of March 1948. The total population of displaced persons in India as recorded in the All India Decennial Census of 1951 was 74.80 lakhs. It was not just Hindus who came from East Pakistan, but even Christians and Buddhists which means that even these religions were persecuted.

The history portrays that the historical injustice with the said persecuted minorities in these three countries left them with no other option but to migrate from these countries to India. The gateway to achieve justice for these people has been opened up recently by the amendment bill, as it seeks to grant citizenship to the people who suffered hardships due to which they had to cross borders during the time of partition. Laws that are already in force are reasonably capable of granting citizenship to not just Muslims, but people from any religion as well, that too from every nation.

The only condition which needs to be fulfilled is that they have to stay for eleven (11) years. However, the waiting period for oppressed minorities has been reduced largely because they have been here for years now. Putting it in simpler terms, it is done positively, much like giving preference to women, oppressed parts of the society, or physically challenged individuals.Therefore, no religion needs to fear the implementation of CAA and NRC.

The purpose of NRC is to detect the illegal immigrants, individuals who migrated to India illegally. To claim that NRC is a method of expelling Muslim immigrants and not Hindu immigrants protected by the CAA is not entirely right, as they would not be provided automatic citizenship. They are required to satisfy certain requirements like residing for an ongoing six years.

As we know, Pakistan, Afghanistan and Bangladesh practice state religion, and do not regard people who believe in any other religion well. Hence, due to their powerless and helpless situation, they have no choice but to migrate to other countries. Considerably, the NRC concentrates on two acts required to identify, arrest, and deport any unauthorized immigrant, those being The Foreigners Act of 1946 and The Passport (Entry into India) Act of 1920.

Constitutional Validity- Article 14

At first glance, the bill passed might seem to be discriminatory and violative but when addressed in depth from the legal perspective, it upholds the requirement of Article 14, thus being perfectly constitutional. Article 14 provides for equality before the law which is one of the magnificent cornerstones of Indian democracy. India is a country of religions and every citizen of India, has the right to equality, which is a fundamental right.

It primarily seeks to protect all persons, including non-citizens as well from any injustice and inequality. To check, if a citizen's fundamental right is being infringed under Article 14, there needs to be inequality amongst the citizens similarly situated. Article 14 prohibits class legalization but does not prohibit reasonable classification and this bill calls for reasonable classification

The CAA seeks to grant citizenship to six religious minorities who fled from State religion dominated three neighboring countries to India before the cutoff date i.e. 31st December 2014. To test the validity of this bill with Article 14 of the constitution, two prerequisites have to be fulfilled which are the components of the reasonable classification test. This test was upheld in Anwar Ali Sarkar vs State of West Bengal.

The first requirement to prove that equality is ensured is that the classification, if any made, has an intelligible differentia, which primarily means classification shall be based on some real and substantial distinction which distinguishes persons or things grouped together in a class from others left out of it.

In Navtej Singh Johar vs Union of India, intelligible differentia was interpreted to mean reasonable differentia. In the CAB, the persecuted minorities have been distinguished from the majority in the three countries which have a state religion i.e. Islam. The six minorities namely Hindu, Parsi, Sikhs, Jain, Budhhist, Christians were on historic background seen to be persecuted on basis of religion as these three countries, namely Pakistan, Afghanistan, and Bangladesh had become theocratic states.

So intelligible differentia has been established as the classification is based on a reasonable basis and is not arbitrary and it would be discriminatory if these minorities are treated equally with the majority in those countries. The second requirement is that the differentia should have a rational nexus that sought to achieve the object of the bill. In the bill, the objective is to provide these religious persecuted minorities citizenship in India, as they have been residing here illegally for years now. Various questions have arisen, various protests have outbroken and people have related the Bill to being Anti Muslim. But is the bill really anti-Muslim and does it bring back the fight which led to partition?

The answer is NO. The concern which people have raised is that the bill does not explicitly state the word religious but only persecuted minorities and that it is discriminatory to create a bill based on religion. The bill does not need to state each and everything, and that religious persecuted minorities were referred to while ministers were explaining the bill ,as they relied on the notification dated 7.9.2015 which clarifies that the persecuted minorities refer to religious persecuted minorities.

Further, certain legal arguments were raised, the first one was if being the choice of three countries on legal valid classification? The answer is Yes, the classification of countries is based on an intelligible differentia as these three neighboring countries have a declared state religion and their constitution also says it all. Additionally, based on historic pieces of evidence provided by the government in the Joint Committee Report, it is clear, that these communities have faced severe persecution based on religion some of them being, forced conversion of Hindus to Islam, the practice of Untouchability, suppression of Hindus, mental torture of Hindu students in Pak, calling kafir, No recognition of Hindus in government services, demolishing of temples especially after Babri Masjid demolition in India, etc.

All this shows how these communities have faced persecution and that too on the basis of religion. Further, the cross-border migration was majorly based on this persecution. Ever since the partition, these communities have only suffered and their situation has been critical in these countries. India being a secular country, seeks to open a gateway for all these people who illegally ventured into India to save themselves from persecution. So, the first tier of classification is valid, reasonable, and non-arbitrary.

Another question that has been contested is on the inclusion of Afghanistan and the exclusion of other land borders sharing neighboring countries. To which the answer was justified by the Ministry of Home Affairs herein referred to as MHA, that in recent past, multiple attacks on Indian interest were witnessed in Afghanistan between 1990 and 2001 when the control was with the Taliban and the Haqqani. Furthermore, the SOP guidelines which were issued by the MHA on 29th December 2011, take care of the refugees and migrants from other countries like Sri Lanka and Myanmar. Also, inclusion and non-inclusion of any country is not a legal argument but a policy argument, it cannot be subject to judicial review as said by Harish Salve, Ex Attorney General of India.

It is totally on the Legislative powers of the parliament to select some countries and exclude others. The choice of countries is based on Intelligible differentia and ethnic connect with India leading to perfect legitimate classification. Additionally, the legal argument which has been raised is the exclusion of Muslims, and the bill appearing to be anti-Muslim, which is absolutely absurd. The migration laws of India, never allowed any illegal migrants to acquire citizenship but if now it is relaxing its migration laws, it cannot be claimed as being arbitrary. The catch is, that India is not creating a new law but only relaxing its existing law which cannot be questioned. The bill aims to identify one type of persecution amongst the others, mainly because these countries follow the state religion and persecute the other religious communities as they account for minorities in these countries. The bill does not identify any other type of persecution like economic, social, etc. Further, the positive concept of equality does not promote equality of person in equal circumstance but equality amongst those people who are similarly situated. Minority and majority cannot be treated equally. Article 14 allows for reasonable classification, which means the people in the minority should be treated alike and those in majority should be treated alike.

Denotes equality of treatment in equal circumstances
Further, the opposition has targeted the legality of this bill by questioning the exclusion of the Ahmadiyya and Shia as they also face persecution in these three countries. To which it has been clarified, the bill does not seek to redress the concerns of inter-religion difference and linguistic or ethnic differences as such issues fall within the scope of administrative and governance-related issues of the concerned States.

And as regards Rohingyas, the answer of the Home Minister in Parliament is sufficient, that, 'they come through Bangladesh', and this is something which dilutes their legal position as genuine refugees so far as India is concerned. As Harish Salve, ex solicitor general of India mentioned, it is on the parliament to create a law for other minorities if they have to be allowed or not, the matter of fact that few religions have been considered for citizenship, excluding others cannot be questioned. Madras High Court in David John Hopkins vs. Union of India stated that the Centre's right to refuse citizenship is absolute and it is not hindered by the right to equality guaranteed under Article 14 of the Constitution of India.

Once article 14's constitutionality has been proved, the policy of parliament cannot be second-guessed as there is always a presumption of validity under this article. Laws related to citizenship are considered a matter of sovereign or legislative wisdom where courts usually don't intervene. Also, the CAB does not aim to go against any provision which is prohibited in the constitution.

To our surprise, only 31,313 persons will be benefitted, (Hindus - 25447, Sikhs - 5807, Christians - 55, Buddhists - 2 and Parsis - 2) these persons will be immediate beneficiaries, as quoted by the Intelligence Bureau. Further these minorities are distinguishable from the rest of Muslim citizens belonging to the three Islamic countries The CAA was the only way to seek the historical injustice, therefore, to conclude with, the amended citizenship Act does not suffer from over/under inclusion because it addresses a set target audience (i.e. the victims of religious persecution) which has been selected on basis of an identifying metric (i.e. the communities which form the religious minority in the three specified countries). This accounts for the non-inclusion of sectarian minorities of the three countries. For these reasons, it is unlikely that any claim of violation of article 14 will stand in court.

Not Anti Religion

Article 21

Article 21 of the constitution of India states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It must be ensured that no legislative action must be taken which could deprive a person of his personal liberty until there is a substantive and justifiable law to support it. Post Maneka Gandhi's case, the court laid down that the procedure contemplated by Article 21 should comply with the requirements of Article 14 which requires it to qualify the reasonable classification test. The procedure must be fair and reasonable and non-arbitrary. Since Article 14 and article 21 are interlinked, in case law concerning personal liberty of individuals passes the reasonable classification test, it will be justified under article 21.

It has been discussed earlier how Citizenship (Amendment) Act, 2019 satisfies the test of reasonableness under Article 14, thus the act will also be justified under article 21. In Hans Muller of Nurenburg vs Superintendent, Presidency Jail, Calcutta & Ors., the court held that Section 3(1)(b) questioned under The Preventive detention Act, 1950 and Section 3(2)(c) under the Foreigners Act, 1946 are not ultra vires as far as the constitution is concerned, having regard to Entry 9 and Entry 10 of the seventh schedule to the constitution. As the name suggests, it is related to Preventive Detention.

The given sections provide the central government with the right to limit the movement of a foreigner and determine the extent of their movement in the country. It is related to the absolute right of the central government to expel a foreigner. They have the power to make necessary arrangements for 'expulsion' which also includes requisite measures to avoid any violation of the order.

The state government has the authority to give an order to detain a foreigner or an illegal immigrant as per the law concerning the 'order of expulsion' made by the central government. The authority to expel a foreigner provided to the government is unlimited and unrestricted. Thus, the government has the sovereign 'power to expel' an illegal immigrant or foreigner without giving any justification. A foreigner may assert to safeguard his right to life and personal liberty under article 21, but cannot claim the 'right to reside or settle in any part of the territory of India' under article 19(1)(e) as it is not provided to the non-citizens of the country.

The counter affidavit filed by the central government states that the scope of Article 21 in India is very broad. Illegal immigrants or foreigners may not be given access to each and every element under article 21. It is essential to understand that it is the government's legislative and moral obligation to identify and recognize illegal immigrants residing in our country to ensure security and as a 'principle of governance' and is in accordance with article 21.

The court has continued to consider the procedure mentioned under the foreigner's Act to be just and fair. It was further stated that illegal immigrants would not have the right to challenge the provisions of the Act. Hence, it proves that any action against illegal immigrants will not deprive them of their personal liberty if taken in conformity to the procedure under the foreigner's Act.

Article 25-28

Article 25-28 of the constitution of India guarantees the right to freedom of religion. Citizenship (Amendment) Act, 2019 strives to preserve the rights of certain communities that faced persecution in specific neighboring countries for practicing, professing and propagating their particular religions. It is merely an expansion of a provision to provide citizenship to religious minorities. These minorities include Hindu, Sikh, Buddhist, Jain, Parsi, and Christian who are facing religious persecution in three countries i.e. Pakistan, Afghanistan, and Bangladesh as they have a specific state religion.

Identification of the minorities facing religious persecution in neighboring countries with a particular state religion and providing them citizenship denotes re-establishment of constitutional and Indian values of secularism, boosts confidence and devotion of the country. Any Muslim who is born to Indian Muslim people are automatically considered as Indian citizens. No such Muslim has been deprived of citizenship.

Even Muslims from the respective neighboring countries, or any foreign country may apply for citizenship under Section 6 of The Citizenship Act, 1955. Long-term Indian visas and citizenship are issued to individuals from the respective neighborhood, if they fulfill the requirements disclosed in the Visa Regulation & Citizenship Act, 1955.

Foreigners may legally migrate and be considered as an Indian citizen, once the required conditions are satisfied. Many individuals belonging to the majority group of these three neighboring countries reside on valid visas in India and these particular individuals would still be qualified for citizenship, with respect to the conditions laid down in the act.

Identification of classified communities that systematically face persecution in specific geographical regions having a particular state religion cannot be defined as contrary to the definition of secularism. It is merely a representation of limited relaxation that has been provided by the country to classified religious minorities.

As we may observe, Harish Salve mentions in one of his interviews that a country would not allow anybody to migrate then to allow minorities of those countries facing religious persecution to migrate. It is correct that Ahmadis & Shiites have faced persecution in the respective neighboring countries, especially in Pakistan, where the Islamic constitution of the country does not even consider Ahmadis as Muslims. Such persecution mostly involves political ground and is not particularly religious. Regardless of whether Pakistan identifies them or not, India considers Ahmadis as Muslims because of their strong belief in Allah and Quran.

It is not our country's duty to interfere with the intra-religious persecution faced by a community in some different country following a specific state religion. Non-identification of specific religions or a group of individuals believing in a specific religion within the sense of majority religion in those countries cannot be compared with persecution of religious minorities, who believe in a religion other than the majority religion in certain neighboring countries.

It is very difficult to deal with all the issues at the same point and it is not our country's duty to address each and every issue of the neighboring countries. In Spite of not signing the UN refugee Convention,1951 our country has continued to provide shelter to a lot of refugees and asylum seekers. Approximately, there are 31,000 refugee and asylum seekers from countries such as Iran, Iraq, Afghanistan and many more. Other migrants not protected by the CAA are still secured on the basis of 'India's refugee policy'. The citizenship has also been provided individually to various refugees which includes migrants from Bangladesh, Afghanistan and Uganda.

It is very essential to keep in mind that the CAA does not make changes in the current citizenship 'naturalization' procedure. Past few years, there have been many individuals from Afghanistan, Pakistan, Bangladesh, which include Muslims, who were granted Indian citizenship through the naturalization process. A renowned personality, Adnan Sami (Pakistani Singer) was granted citizenship in 2015, under Section 6(1) citizenship by naturalization. CAA does not discriminate on the basis of religion, but categorizes it on the basis of 'religious persecution' in respective countries with state religion. Consequently, the CAA does not breach the revered concept of secularism.

Politics-Vote Bank

Vote bank Politics has played a big role in India since the beginning. It is a way through which political parties target votes for their tenure. Since the BJP has implemented the CAB, the opposition parties have left no opportunity to target the Muslim community and propagate that the said bill is to take away their citizenship. Nevertheless, their sole purpose has been to spread a sense of fear among the Muslim community against the Hindus, and to further divide the Hindu Muslims.

It has been seen that dissenting opinion has been received from the states which are non-BJP ruled, and the very reason for which is the vote bank politics. The opposition has gotten a chance to turn to the pseudo secularism era. For instance, bordering states like West Bengal and Assam, have for a long time provided illegal immigrants with Indian identification cards and in return, the party has received a compulsory vote from those people.

In west Bengal, Muslims have shown faith in their Chief Minister,Mamta Banerjee as she went against the implementation of the bill in her state and has won the heart of the Muslims for the purpose of vote bank.Congress has always aimed at consolidating Muslim votes. S.L Harappa, a renowned Kannada novelist, mentions how congress has facilitated illegal migration of Muslims to Assam from the then East Pakistan.

Not only this, even after Bangladesh was established, it did not stop and the left-wing parties that governed West Bengal permitted migrants to enter illegally which eventually allowed them to scatter all over the country. The imminent danger to Congress, CPM, TMC, SP, BSP, RJD and others who allow and promote illegal immigrants is clearly evident.

They tend to issue them Indian identities, Aadhaar cards, even addresses and voting cards so as to increase their vote banks. Count of these immigrants is projected to be over 2 crores. The CAA has ignited the fire between religions and the opposition parties have taken advantage of the bill and has tried to win the hearts of the communities who have dissented the bill and who have been going for protests against the implementation of the bill.

Conclusion:
As we all know, illegal migrants are usually considered a threat to the security of a country so it becomes critical to detect such infiltrators. Those who enter into India on valid travel documents and are registered with FRRO/FRO and possess valid residential permit/visa have a legal right to stay in India and are termed as legal, otherwise, they are illegal immigrants.

We must not ignore the distinction between illegal migrants and refugees who faced religious persecution, who were oppressed and had to leave their native countries for the sole purpose of believing in their religion and not the state religion. CAA aims to provide these doomed nationless people a legal identity.

If we try to prove the flawed logic of the oppositions about the bill being anti-Muslim, there is no country other than India except Nepal where the Hindu religious community is a majority but there are about 50 countries with Islam as their state religion out of which 11 follow the Shariat.

If it is said that the bill classifies people on the basis of religion, where would the approx 800-900 million Hindus go? From a constitutional aspect, citizenship cannot be granted as a matter of right to any person as it is not a fundamental right. It is the discretionary power of the parliament on behalf of the country as a whole to decide whether citizenship is to be granted or not.

With all that being said, it can be concluded that all religions are equally given preference and are valued in India. No one religion is preferred over the other for giving citizenship. India is a secular democracy, welcoming all religious communities and with the Amendment bill there has been only a relaxation which has been provided for the six religious minorities which were persecuted in the three Muslim neighboring countries.

But this does not mean that any other religious communities right to citizenship is being taken away or is being restricted. They can apply for Indian Citizenship under this category but they would have to prove religious persecution which made them flee to India. Further, the introduction of this bill does not affect any other means through which earlier citizenship used to be granted under the citizenship act, 1955 like by obtaining a passport, ration card, all other documents required, or by getting them registered in the voter's list. Certainly, the bill is the recourse for those immigrants who have applied for citizenship and have claimed that they have been persecuted on the basis of religion in their respective country.

References:
  • Correspondent, Special. "Writer Bhyrappa Accuses Congress of Pursuing Vote-bank Politics over CAA." N.p., 10 Jan. 2020. Web. 29 July 2020.
  • Says:, SuchindranathAiyerS. "Infiltrator Vote Banks under Threat from CAA, NPR, NRC." N.p., n.d. Web. 29 July 2020.
  • Hebbar, Nistula. "CAA Is Perfectly Legal and Constitutional, Says Law Minister Ravi Shankar Prasad." N.p., 29 Dec. 2019. Web. 29 July 2020.
  • In The Supreme Court Of India Writ Jurisdiction Writ . N.p., n.d. Web. 29 July 2020.
  • Preliminary Counter Affidavit On Behalf Of Union Of India, 2019 https://images.assettype.com/barandbench/2020-03/ce48cef8-485a-4f2f-8026-4882405092f8/Central_Government_CAA_Counter_Affidavit.pdf
  • Report Of The Joint Committee On The Citizenship (Amendment) Bill, 2016, www.prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20%28A%29%20bill.pdf.
  • NDTV Harish Salve On Citizenship Bill Youtube, commentary by Sreenivasan Jain, 11 december 2019, https://www.youtube.com/watch?v=VgiFqMrCxPU

Written By:
  1. Disha Agarwal and
  2. Kratee Aggarwal

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