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
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:
- Friendly Aliens
- 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.
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 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.
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
- 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:
- 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
- The Amendment eases the requirement and qualification of naturalization
as provided in the Citizenship Act, 1955 [Section 6 ] 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.
- 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.
- 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:
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.
- 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.
- 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,
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 – 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 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 Orsthe 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 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
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.
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:
- Enters the country without valid travel documents like passport and visa
- 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
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
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
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.
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
Supreme Court on the Constitutional Validity of the Citizenship Amendment Act,
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.
- The Citizenship Act, 1955, No.57, Acts of Parliament, 1995 (India).
- The Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019
- State of West Bengal V. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
- R.K. Garg V. Union of India , AIR. 1981 SC 2138 (India).
- Rajat Gangwar V. State of U.P. & Ors , (W.P. (C) No. 2497/2019).
- Association for Protection of Civil Rights (APCR) & Ors V. Union of
India, (W.P. (C) No. 24/2020).