The Citizenship Amendment Act, 2019

The Citizenship Act, 1955 has been amended six times in the years – 1986, 1992, 2003, 2005, 2015, and 2019. The concept of citizenship is crucial to a country, especially India because it is the second-most populous in the world and can provide exclusive rights only to her citizens.

The amendment in 2019, however, invited a lot of protests by Islamic communities and northeastern states, especially Assam. It is stated by many Islamic unions and organizations that Section 2 of the amended Act violates the fundamental rights of their community under Article 14 and Article 21. Section 2 states that people belonging to the communities of Hindu, Jain, Buddhism, Parsi, Sikh or Christian belonging to the three neighboring countries, i.e., Pakistan, Afghanistan, and Bangladesh are eligible for Indian citizenship only if he/she has entered India before 31st December, 2014 and has lived for at least five years in the country. The above-mentioned provision does not apply to the Muslims and hence is deemed discriminatory towards them. The ground of classification sought by the Indian government is that the people of these six communities have been ‘persecuted’ in these three countries. However, the text of the Act does not mention the word ‘persecution’. The Hon’ble Supreme Court in the case of Navtej Singh Johar v Union of India[1], has held that “where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on intelligible differentia.” 

Hence, the classification based on persecution is termed baseless because, in case the Act is for the persecuted religions as claimed, it should be applied to protect other religions from countries like Sri Lanka and Bhutan as well. This is because the constitutions of both countries mention a special place for Buddhism. There are minorities of Hindus in Sri Lanka which have not been included in the amended Act. It has been held repeatedly by the Hon’ble Supreme Court that it does not matter if state action attempts a reasonable classification or not, the only factor that matters is that the action is arbitrary. There is a presumption that the arbitrary actions are unequal and hence are violative of Article 14.[2]

Further, the object mentioned in the Statement of Object and Purposes is to protect the six communities mentioned in the amended Act from the three neighboring countries. The object of the amended Act is itself violative of Article 14. Under the object of the Act, if one were to assume that the objective is to protect the minorities, the exclusion of Bhutan and Sri Lanka is blunt. The exclusion of the same undoes any nexus established between the object of the law and the classification it makes.

News articles have reported murders of activists and authors who hold secular and atheist views. The persecution of atheists because of a lack of religious beliefs also falls under the ambit of religious persecution. Hence, merely using persecution as the basis of the amended Act is unreasonable and suffers from the vice of arbitrariness. If the purpose of the amended Act is to accommodate religious minorities suffering from persecution, then the distinction on the basis of religion and country of origin is irrational and unjustified.

The CAA, 2019 also emerges as a threat to the basic principles[3] such as secularism mentioned in the Preamble of the Constitution of India. The Act also violates Article 21 of the Indian Constitution as it violates the right to live with human dignity which is a part of the right to life and personal liberty.[4] Further, Muslims have also been excluded from the benefits under Section 6B of the Act. Section 6B of the act provides a special provision of naturalization but the benefit is only provided to the six communities from the three neighboring countries mentioned in Section 2(1)(b) of the amended act.

The government has failed to adhere to the constitutional directives mentioned in Article 51. The Article ensures that the state respects international treaties and obligations. But with the amended Act, the government has violated the principles and guidelines mentioned in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The articles in both conventions prohibit discrimination on the basis of religious identity. Article 26 of ICCPR prohibits such discrimination on the basis of religious identity. The Hon’ble Supreme Court has time and again submitted that any international convention not inconsistent with fundamental rights mentioned in the constitution should be adopted by the state. In Puttaswamy v Union of India[5], the hon’ble court has also stated that India is a responsible member of the international community and India should follow international conventions and obligations.

On the other hand, the government of India is continuously assuring Indian citizens that no fundamental rights are violated. The government of India has filed an affidavit against all the petitions lodged against the Citizenship Amendment Act, 2019. The government of India stated that no article under the Indian Constitution has been violated by the Citizenship Amendment Act. It is also stated that the Parliament has the power to make laws for any matters listed in the 7th Schedule under Article 246 of the Constitution. The matter of citizenship is at number 17 on the list. Further, the government also connected the amended act to the partition of India and Pakistan. According to the government, cross-border migration was only due to the partition in 1947. The current amendment is said to be done due to the recognition of a historic fact. It is also stated that history clearly depicts that persecuted minorities in these neighboring countries were left without any rights and that injustice sought is to be remedied by the amendment without taking away the right of any other person. It is also submitted that the Foreigners Act, 1946 confers the power to expel foreigners from India. This Act vests the central government with absolute discretion and as there is no provision confining the discretion, the power to expel remains. The provisions of the Foreigners Act, 1946 were upheld by the Hon’ble Supreme Court in many judgements[6]. Also, in the clear mandate of the Act, no illegal immigrant can crave leave of this hon’ble court under Article 32 seeking to settle and reside in India or further, make any claim for citizenship. The central government has the powers to detain and deport an illegal foreigner under Article 258(1) of the Indian Constitution.

With respect to Articles 15 and 19, the government stated that these cannot be invoked on the basis of recognition of religious persecution in specific countries. This is because what cannot be done directly, cannot be done indirectly. Hence, Article 15 and Article 19 cannot be pleaded by illegal immigrants, foreigners, or Indian citizens on behalf of them.

Further, the said measures are merely in the nature of prescribing qualifications for citizenship based upon rational and reasonable classifications and do not grant carte-blanche[7] citizenship to the classified communities. The Citizenship Amendment Act, 2019 is in consonance with the statutory regime of 1955 Act and the Foreigner Act, 1946. Also, the amended Act does not classify or differentiate on the grounds of religion rather it classifies on the grounds of “religious persecution” in countries functioning with a state religion.

Further, it is also submitted by the Indian government that the use of international treaties and conventions by this hon’ble court has always been contingent on the answer to a factual inquiry viz. has the Indian government signed and or ratified the particular international treaty or convention that the court wishes to use as a constitutional interpretative aid. Therefore, it has been respectfully submitted that the doctrine of incorporation of international law recognizes the position that the rules of international law are considered to be part of the national law only if they are not in conflict with an Act of Parliament.[8]

Hence, the contentions of both the opposing parties are valid and justified. The Hon’ble Supreme Court has to make a decision on hearing both the parties. The Muslim community, as well as the northeastern states, have faced discrimination either on the basis of religion or on the basis of the cut-off date. But the government has time and again assured that the citizens of India will not face any persecution or discrimination on any basis. The amended Act might provide benefits in the near future.

[1] (2018)10 SCC 1

[2] EP Royappa v State of Tamil Nadu & Anr, 1974 SCR (2) 348

[3] Kesavananda Bharati and Ors. V. State of Kerala and Anr, AIR 1973 SC 1461

[4] Francis Coralie Mullin v. The Union Territory of Delhi, 1981 1 SCC 608

[5] (2017) 10 SCC 1

[6] Hans Muller of Nurenburg vs Superintendent, Presidency Jail, Calcutta & Ors., (1955) 1 SCR 1284

[7] Complete freedom to act as one wishes

[8] Vivek Singla, Know about the Difference between NRC and CAA 2019 PaGaLGuY (2020), (last visited May 31, 2020).

Tanya Saraswat from Narsee Monjee Institute of Management Studies 

She is a B.B.A. LLB student and the President of the ADR club of her college. She is a member of many arbitration organisations and loves to research and read.

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