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The Citizenship Amendment Act,2019 And its relation with The Indian Constitution

Background And Emergence Of The Concept Of Citizenship

The true concept of citizenship first grew and arose in the towns and cities of Ancient Greece , where it used to be applied to property owners but not to the women and poorer section of society ,the so called citizens of these Greek states and cities were given certain rights such as right to vote , and were given or made liable to the taxation policy of the state and the citizenship as a device was later been witnessed being used as a tool by the Roman Empire to distinguish its residents from the rest.

The provisions relating to citizenship were debated in the Constituent Assembly between 10 to 12 of August 1949 and the draft of the Indian Constitution as presented by Dr. Ambedkar on Thursday; the 11 August 1949 discussed the various aspects relating to the concept of citizenship in India. The vital components relating to the citizenship i.e. Article 5 and Article 6 was taken up for the consideration by the constituent assembly on the said date . The draft regarding the citizenship was created and destroyed multiple times before incorporating in the final draft of the Constitution in Part II and is amended over 100 times.

Like any other state the Republic of India also has two kinds or categories of people:
  • Citizens
  • Aliens
The classes of people qualifying to be the citizen of the country are full members of the Indian State and owe allegiance to it. The citizens of the Republic of India or any other state enjoy all political and civil rights , while aliens on the other hand are the citizens of some other state hence do not enjoy the same rights conferred to the citizens of any country these so called aliens can be broadly divided further into two categories:
  1. Friendly Aliens
  2. Enemy Aliens

Friendly Aliens are the subject of those countries that has cordial and warm relationship with India on the contrary and Enemy Aliens are the subject or citizens of that country with which India is war at and subsequently they enjoy lesser rights and privileges than the Friendly aliens i.e. do not enjoy the protection against arrest and detention enshrined Article 22 of the Indian Constitution. Citizenship can be considered to be the most privileged form of nationality that gives the status of freedom with accompanying responsibilities to every citizen of the nation.
Constitution and Statutory provisions relating to the citizenship in India

Part II - Article 5 11 of the Indian constitution deals with the citizenship of India. Article 5 -11 can be said to have a restrictive approach as it only identifies the person who became the citizen of India at the commencement of the Constitution i.e. 26th January 1950 but do not deal with the problem relating to the acquisition or termination or loss of the Indian citizenship succeeding to the commencement. However, Article 11 of the Constitution at the same time empowers the parliament to enact the law to provide and deal with such matters relating to the citizenship and in view of that the parliament has come up with the enacted Citizenship Act 1955.[1]

Apart from the above discussed provisions relating to citizenship the Indian Parliament as per the powers conferred by Article 11 [relating to Acquisition & Termination] has enacted the Citizenship Act, 1955. The citizenship is defined in the Seventh schedule, List I, Item number 17 Citizenship, Naturalization and aliens thus further implying that only the central government has been given the power to deprive a person from his/her citizenship.

Broadly it defines five ways of acquiring the citizenship that are discussed as below in this article:
  • Single Citizenship and its status in comparison to other countries
If we compare our status and system of citizenship with other federal countries like USA and Australia, India follows the system of Single citizenship. The constitution of India like that of Canadian Constitution, has introduced the system of single citizenship to its citizens and in order to secure the virtue of Integrity and Fraternity as provided in our preamble and to keep the vast and secular country like India integrated . In comparison to Federal countries like USA and Australia , where each person not only is a citizen of USA but also that of a particular state to which they belong in India people only enjoy the fruits of single citizenship that is of India.
The Citizenship Amendment Act, 2019

The Ministry of Home affairs introduced The Citizenship [Amendment] Bill, 2019 [2]in the Lok Sabha - [Lower house] on December 9, 2019 and was passed by the Rajya Sabha [Upper House] on December 11, 2019 and has received the assent of the president on December 12,2019 and had come to force from January 10,2020. And the aforesaid act has created a great deal of political turmoil and havoc in country since its inception, the Bill now an Act seeks amends the existing Citizenship Act, 1955 and seeks to make foreign illegal migrants of certain religious communities coming from Afghanistan, Bangladesh, and Pakistan eligible for citizenship in India. The bill categorically grants Indian Citizenship to the persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have migrated to India after facing persecution on grounds of religion in Pakistan, Afghanistan and Bangladesh.

As discussed previously the citizenship in India is regulated by the Citizenship Act, 1955 and the aforementioned act prescribes five methods for acquiring citizenship in India- By birth , by descent , through registration, by naturalisation and lastly by incorporation of Territory into India.

However illegal migrants cannot become Indian citizenship however the Citizenship Act,1955 neither has any specific provision relating to the same nor under the Act of 1955, an illegal migrant is a foreigner who- enters the country without any valid travel documents like passport or visa, or enters with valid documents but stays beyond the permitted time period and at the same time the act provides that an illegal migrant may be put in jail or deported under the Foreigners Act, 1946 and Passport Act, 1920.

This Citizenship Amendment Act 2019 aims to make changes in the existing Citizenship Act of 1955, the Passport Act and the Foreigners Act on the condition or the pretext that they belong to the religious minority communities from any of the following neighboring state namely Bangladesh, Pakistan and Afghanistan.

The Citizenship [Amendment] Act, 2019 has also has significantly reduced the prior requirement for the people to stay in India for at least 11 years before applying for Indian citizenship has been reduced now to Five years.

Previously, On September 7th 2015 and 18th of July 2016 , the Government of India had issued two notifications meant for amending the Passport Rules of 1950 and Foreigners Order 1948 and thus have made two of the imperative changes in the Citizenship Act, 1955:
  • The illegal migrants who have entered into India on or before 31st day of December such as Hindus, Sikhs , Buddhists , Jains ,Parsis and Christian from Afghanistan , Bangladesh and Pakistan , eligible for applying for citizenship of India.
     
  • As previously mentioned one of the requirements for obtaining citizenship by the way of naturalisation is that the applicant must have resided or served a Government of India for not less than eleven years , the Bill of 2016 reduces this to not less than six years. But the current Citizenship Amendment Act, 2019 has reduced this specific provision and has reduced this period from 5 years from 6 years.

Key Provisions of the Citizenship Amendment Act, 2019:

  1. The Act states that the Hindus, Sikhs, Buddhists, Jains, Parsis and Christian coming from Afghanistan , Bangladesh and Pakistan , who entered India on or before December 31, 2014 will not be treated as illegal migrants thus will so be exempted from the Foreigners Act of 1946 and the Passport Act, 1920.
     
  2. The Amendment eases the requirement and qualification of naturalization as provided in the Citizenship Act, 1955 [Section 6 [1]] from 11 years to years as a specific condition for applicants belonging to the aforementioned categories. The Citizenship Amendment Act of 2019 relaxes the prescribed requirements in India for citizenship by the way of naturalization , Generally a person who applies for the citizenship to be acquired by the way of naturalization has to be a resident of India for the period of twelve months prior to the date of filling of the application and in addition to this condition he has to be the resident of India for period of eleven years out of the fourteen years but the Citizenship Amendment Act of 2019 reduces the eleven years requirement to five years.
     
  3. Under the Citizenship Amendment Act of 2019 the applicants should have interloped into in India on or before the date of December 31, 2014 and the cutoff date for citizenship is 31st day of December, 2014 and all the legal proceedings and the disputes relating to the illegal migration or citizenship will be closed accordingly.
     
  4. The Act also amends the provisions on registration of Overseas Citizenship of India (OCI) in a nutshell OCI cardholders can be defined as the foreigners who are persons of India Origin and is vested with certain kinds of benefits such as the right to travel to India without visa, or to work and study in India. Apart from these provisions the Citizenship Amendment Act 2019 provides an occasion for the OCI cardholders to be heard before the cancellation of their citizenship.

    Prior to the Amendment Act of 2019 there were five grounds specified for cancellation on the five following grounds namely:
    • Showing disaffection to the Constitution of India
    • Registration through Fraud
    • Engaging with the enemy during war.
    • Damaging the sovereignty of India.
    • Sentenced to imprisonment for two years or more within five years of registration as Overseas Citizenship of India.
    But the Citizenship (Amendment) Act, 2019 added one more ground of the cancellation of the same. The recent Act adds the sixth ground i.e. Violation of any law notified by the central government but the act does not provide any guidance or lucidity on the nature of such laws.
     
  5. The Citizenship Amendment Act of 2019 exempts certain areas defined in the sixth schedule of the Citizenship Act of 1955 and the same would not be applicable to the tribal areas of Assam, Meghalaya, Mizoram, Tripura and the other regions belonging to the Inner Line permit areas.
     

Constitutional provisions relating to the Citizenship Amendment Act, 2019

  • Article 11 of the Indian Constitution:

    Under Part II, Article 11 of the constitution of India the parliament is empowered by this provision to make any provision in - respect to acquisition and termination of citizenship and all other matters relating to citizenship, it is because of the virtue of this provision that the parliament has enacted the fundamental law governing the citizens in India i.e. The Citizenship Act, 1955 to which the present- and latest-day amendments are being made vis a vis the Citizenship Amendment Act, 2019.
     
  • Article 13 of the Indian Constitution:

    This Article of the Indian constitution unambiguously states that any law in derogation or inconsistent with the fundamental rights shall to that extent be void and furthermore the clause 3(b) makes a mention that the term law in force includes the laws made by the legislature i.e. The Parliament of India. So from a prospective view if the Indian Parliament makes a kind of law that takes away the or that denies equality before the law or equal protection of law will be void.
     
  • Now comes one of the main apple of discord in relation to the amendment of 2019 Article 14 of the Indian Constitution Article 14 explicitly mentions that the state shall not deny to any person equality before the law or equal protection of the law within the territory of India. One of the main distinct features of this article of the constitution is that unlike other articles like Article 16 and Article 19 that are only available to the citizens of India, this concerned Article of right to equality is available to both the citizens and foreigners or Non- citizens.

    In association with the Article 14 to doctrine or test for reasonable classification are laid down by the Indian Judiciary in the famous case of State of West Bengal V. Anwar Ali Sarkar[3] Namely the test of intelligible differentia and the test of rational nexus. While at the same time many of the Legal experts and luminaries are of the opinion that the new Citizenship Act of 2019 violates the fundamental right guaranteed under Article 14 of the Indian constitution.

    Many of the Petitioner challenging the CAA also believe that the said amendment is arbitrary and in contravention to the Judgment of the Hon'ble Supreme Court in the case of R.K. Garg V. Union of India[4] where the court has expressly established that Article 14 prohibits Parliament from enacting laws that are arbitrary or irrationally differentiate between groups of persons and the same has been challenged under a writ petition filed by Indian Union Muslim League against the implementation of Citizenship Amendment Act, 2019.
     
  • Article 15 of the Indian Constitution prohibits the state to make any kind of discrimination instituted on the grounds religion, race, caste, sex or place of birth, but the said Amendment of 2019 chiefly excludes on of the religious communities of India on the basis of religion thereby contradicting the principles laid down in Article 15 of the constitution.

    In the case of Rajat Gangwar V. State of U.P. and Ors[5]the petitioner stated that the protest and procession is against the discriminatory amendment based on religion, and the Amendment by CAA,2019 have singled out, only on the ground of religion which is not permissible in the Constitution and petitioner in this case contended that it is per se arbitrary and discriminatory.

    The Additional Chief Standing Council appearing for the Government contended in the Para 38. Of the aforementioned case that under the Constitution of India, people of India , the source of power making Constitution ,as a matter of policy, while contemplating equality in all respects to the residents of India and similarly by the Virtue of Article 29 and 30 of the Constitution the Parliament in its policy have protected the interests of minorities communities of three neighboring countries , who are under the threat on account of the fact that they are religious minorities in those countries and the parliament in order to provide protection to such persecuted persons have therefore made amendments by CAA,2019.
     
  • The said Act or the Citizenship Amendment Act in a way can also abridge or curb the fundamental right as enshrined in Part III of the Indian constitution i.e. Article 16 that promotes equality in the matters of public employment, as a result now Hindu, Parsi , Sikh, Buddhist, Jains and Christians would now become qualified for service in government having residence for 5 years while a Muslim candidate has to wait for eleven years to prove his residence and to become eligible for the same.
     
  • In the matter of Association for Protection of Civil Rights (APCR) & Ors V. Union of India[6] the validity of the impugned Act was challenged in relation to Secularism which forms a basic structure of the India Constitution, As per APCR the impugned Act makes professing of certain religion as a ground for eligibility for the status of citizenship which as per the petitioners is against the principle of Secularism, thus offending the basic structure of the constitution.

As per the opinion of the Former Solicitor General of India and Designated Senior advocate Mr. Harish Salve the Citizenship Amendment Act of 2019 is neither discriminatory nor violative of the Constitution.

According to him classification based on religion is not unconstitutional per se and he has also stressed upon the decision that the Supreme Court has repeatedly held that the court cannot interfere simply because other methods are possible, even if the court thinks that they are betterment for the country and the government for the same should be left to determine which of many possible schemes is best.

Many critiques at the same time believe that this Citizenship Amendment Act, 2019 now carves out or provide exclusion to the people belonging to religious communities from Bangladesh, Pakistan and Afghanistan who had intruded the territory of India on or before the 31st day of December, 2014 fearing religious persecution and at the same time gives them an occasion to obtain citizenship by the way of naturalization regardless of their illegal entry into India.

But as per my opinion the recent Citizenship Amendment Act violates the principle of secularism which is a part of constitutional morality and also in a sense Article 14 as the same act does not qualify the test for reasonable classification as the basis on which the differentiation is being made have no rational reason or consideration nor can this type of classification can reasonably be understood by a rational man or a prudent person as to why other persecuted minorities are not being brought into confidence and consideration.

The Government have to give a reasonable justification as to why religious minorities in other religions i.e. Muslim Sects such as Shia, Baloch and Ahmediya who are facing utmost religious minorities in Pakistan, Bangladesh and Afghanistan had been excluded, Also at the same time the Citizenship Amendment Act, 2019 also tries to make altercations with the existing definition of Illegal migrants as provided in the fundamental Citizenship Act of 1955. Illegal immigrant as defined duly in the section 2(b) of the act of 1955 gives the following definition:
An illegal migrant is a foreigner who:
  1. Enters the country without valid travel documents like passport and visa or
  2. Stays beyond the permitted time period or the stipulated time period.
Apart from the above it is also shocking to note at this point that under the earlier citizenship regime, an illegal migrant as discussed above was denied citizenship even if he has qualified and fulfilled the process of naturalization defined under Section 6 and its qualifications as mentioned under The Third Schedule of the Citizenship Act, 1955 and prior to the aforementioned Amendment of 2019- whether or not a person is an illegal migrant was the outcome that was based upon whether he possess valid travel documents and passport or not but now this amendment has shocking reduced the establishment and significance of such documents by introducing religion as a parameter or yardstick to grant citizenship.

Even if we keep the aspect relating to religion apart from the Citizenship Amendment Act of 2019, this Act can also prove to be detrimental in terms of the National Security, The Research and Analysis Wing (RAW) which is India's external intelligence agency had even expressed their deep concern relating to the bill and its impact on the nation security, the RAW had expressed this opinion and its apprehensions to a joint parliamentary committee. And the scrutiny done by the premier agency seems to be legitimate and valid as the framework provided by this Amendment Act of 2019 can potentially be misused by infiltrators and agencies like ISI to disrupt the sovereignty and integrity of India.

Intention Of The Legislature Behind The Citizenship Amendment Act 2019.

As per the  Statements of Objects and Reasons which acts as a main tool to understand the crux and intention behind the Citizenship Amendment Act, 2019 , the Legislature have expressly stated that it is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Bangladesh and Afghanistan and millions of citizens of undivided India belonging to various faiths were during that time staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947.

The Statements of Objects and Reasons have also mentioned that the Constitutions of Pakistan, Afghanistan and Bangladesh provide for specific state religion and as a result many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecutions in their day-to-day life where right to practice, profess and propagate religion has been obstructed and restricted.

Most of the Member of Parliaments and the legislators have argued and claimed that the main intent of this legislation is to provide the protection and fortification to the religious minorities who are facing persecution in these Muslim majority and dominated countries which are so mentioned in the act i.e. Bangladesh, Afghanistan and Pakistan.

But the Union Minister of Home Affairs Amit Shah has clarified the position regarding the same and has claimed that the Citizenship Amendment Act, 2019 would not take away citizenship right to any citizen or sect and told that the said act will not take away anyone citizenship but will provide or foster the citizenship in the country and the Union Minster of Home Affairs have supported this argument by mentioning the spirit of the Delhi pact or Nehru Liaquat pact of 1950.

The Concept Of The National Register Of Citizens And CAA 2019.

The National Register of Citizens or the NRC is an official record maintained by the Government of India and currently holds all the demographics and important information of the Indian citizens residing in the region of Assam.

Basically the concept of NRC found its roots after the census conducted in the Year 1951 and in the same year the Assam region became the first region to update its NRC with the aim and objective of identifying the illegal immigrants that have intruded or infiltrated from Bangladesh to the region of Assam after 24th of March 1947. Historically also the northeastern region or the seven sisters have to face with lot of infiltrators during the Indo- Bangladesh war and during the Partition of 1947.

The region of Assam has always been a bone of contention due its diminishing tribal ethnicity, limited resources and the traditional culture . Recently the Home Ministry has proposed the idea to extend this NRC or the National Register of Citizen to the whole of India.

The Nationwide Nation Register of Citizens or NRC will particularly target the illegal immigrants but after the advent of the Citizenship Amendment Act of 2019 any illegal immigrant migrated from any country other than specified in the CAA namely the Pakistan, Afghanistan and Bangladesh will be severely affected and many are skeptical that the non-enclosure of the Muslim community in the said Act of 2019 may lead to be supposed as illegal immigrant if they are unable to furnish or present any kind of relevant proof or documents of their existing citizenship.

Supreme Court on the Constitutional Validity of the Citizenship Amendment Act, 2019.
As far as the Current scenario, there are about 59 petitions lying before the Hon'ble Supreme Court of India relating to the Validity of the Constitutional Amendment Act is being concerned, and the Apex court had issued a notice to the Centre and have agreed to hear all 59 CAA petitions from 22nd January 2021.

Conclusively, the Act of 2019 can be considered to be an lively step that have positively contributed towards rights of citizenship of the said persecuted minorities who have suffered for more than 73 years . However, the Act of 2019 lacks lucidity & precision and most of its provisions follow the coast of ambiguity. But the constitutional validity of the same which is in question cannot be established or be ascertained until and unless the same gets clarified and upheld by the Hon'ble Supreme Court of India.

End-Notes:
  1. The Citizenship Act, 1955, No.57, Acts of Parliament, 1995 (India).
  2. The Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019 (India).
  3. State of West Bengal V. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
  4. R.K. Garg V. Union of India , AIR. 1981 SC 2138 (India).
  5. Rajat Gangwar V. State of U.P. & Ors , (W.P. (C) No. 2497/2019).
  6. Association for Protection of Civil Rights (APCR) & Ors V. Union of India, (W.P. (C) No. 24/2020).

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