The Citizenship Amendment Act, 2019 (CAA) has emerged as one of the most controversial legislations in recent Indian history, triggering widespread protests and public debate. The CAA amends the Citizenship Act, 1955 to relax eligibility criteria for Indian citizenship for certain minority communities from Afghanistan, Bangladesh and Pakistan. However, it excludes Muslims from its purview.
The CAA has raised serious constitutional concerns regarding violation of the right to equality under Article 14, undermining of secularism, arbitrary powers to the executive for determining citizenship, and apprehensions of discrimination when implemented along with the National Register of Citizens (NRC).[1] This blog analyzes the key provisions of CAA, its constitutional implications and the larger political context shaping the citizenship discourse in India.
Background
The CAA was passed by Parliament on 11 December 2019 and received presidential assent on 12 December 2019.[2] It relaxes eligibility criteria for Indian citizenship for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014.[3]
The CAA does not apply to tribal areas of Assam, Meghalaya, Mizoram and Tripura as included in the Sixth Schedule of the Constitution.[4] It also does not apply to the areas under the Inner Line Permit regime under the Bengal Eastern Frontier Regulation, 1873.[5]
The CAA triggered protests across India led primarily by Muslim groups. Protestors argued that while the Act purports to help persecuted minorities, it excludes Muslim minorities like Ahmadiyyas and Rohingyas who also face religious persecution.[6] They contended that the CAA violates principles of equality and secularism under the Constitution.
The government justified CAA as a humanitarian gesture towards religious minorities in Islamic theocratic states of Pakistan, Afghanistan and Bangladesh. It stated that Muslims are not persecuted in these Islamic countries, and the CAA does not affect Indian Muslims.[7] However, experts argue that the Act emerges from the majoritarian politics of the ruling dispensation rather than humanitarian concerns.[8]
Amendments made by CAA 2019
The CAA amended Sections 2, 3 and 6 of the Citizenship Act, 1955. Section 2 relaxes eligibility criteria for citizenship by naturalization for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014.[9]
For these communities, the required period of residence in India has been reduced from 11 years to 5 years. The registration or certificate of naturalization is not required. They are also exempted from provisions of the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.[10]
Section 3 provides that the above-mentioned beneficiaries shall not be treated as illegal migrants for any proceedings under the Citizenship Act. Section 6 relaxes eligibility criteria for citizenship by birth for these communities. Persons belonging to these communities shall not be deported or imprisoned for being illegal migrants.[11]
Constitutional Validity of CAA
The CAA has been challenged before the Supreme Court on grounds of violating the right to equality under Article 14, right to life under Article 21 and constitutional morality inherent in the basic structure.[12]
A. Article 14: Right to Equality
A key ground on which CAA is challenged is violation of Article 14 which guarantees right to equality. Article 14 prohibits class legislation but permits reasonable classification. To pass Article 14 scrutiny, the classification must be founded on an intelligible differentia and have rational relation to the object sought to be achieved.[13]
B. Religion-Based Classifications
By using religion as a criterion, CAA makes illegal classifications between citizens based on their faith.[14] The objective as per the Statement of Objects and Reasons of the Amendment Act is to grant citizenship to minorities who faced persecution on grounds of religion. However, the exclusion of Muslims, including persecuted sects like Ahmadiyyas and Shias, makes this classification unreasonable.
The Supreme Court has held that Article 14 forbids class legislation but does not forbid reasonable classification. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law.[15] The exclusion of Muslims and certain other groups from the scope of CAA makes the classification arbitrary and discriminatory.
C. Under-Inclusive Nature of Classification
The CAA is also under-inclusive as it leaves out religious minorities from other neighboring countries such as Sri Lanka, Myanmar, Nepal and Bhutan. The classification of only three countries is arbitrary as it is not based on any objective criterion regarding persecution of minorities.[16] Religious persecution of Tamils in Sri Lanka, Rohingyas in Myanmar and Buddhists in Bhutan has been well-documented.[17]
The government justified the exclusion of other countries by stating that CAA is specific to the partition in 1947 and the Nehru-Liaquat Pact.[18] However, this justification does not explain the exclusion of countries which were not part of pre-partition India.
International human rights treaties including the Universal Declaration of Human Rights (UDHR) prohibit discrimination based on religion.[19] Article 26 of UDHR guarantees right to seek asylum from persecution in other countries. Therefore, using religion as a criterion for determining Indian citizenship is inherently discriminatory and violates India’s obligations under international law.
D. Undermining of Secularism
It has been argued that CAA violates the basic structure of the Constitution by undermining its secular character.[20] The Preamble declares India to be a secular republic. Secularism is part of the basic structure as held in S.R. Bommai v. Union of India.[21]
The use of religion as a criterion for determining Indian citizenship is antithetical to constitutional secularism. The Nehru-Liaquat Pact cited by the government itself adopted a secular approach by protecting rights of minorities in both countries irrespective of religion.[22]
Critics argue that the idea of India as a homeland for Indic religions like Hinduism, Buddhism, Jainism and Sikhism underpins the CAA. This negates the constitutional vision of citizenship where rights guaranteed to religious minorities are not a matter of magnanimity but of constitutional commitment to secularism.[23]
Enforcement Issues Regarding Determining Religious Identity
It has been pointed out that CAA does not lay down any mechanism for determining the religious identity of the beneficiaries.[24] The Act does not specify any documents required to prove religious identity or the persecution faced by applicants. This confers unguided powers on the executive to validate the religious claims of applicants seeking citizenship under CAA.
International experience with refugee law suggests that officials often evaluate asylum claims based on stereotypical assumptions about religious minorities. Elaborate questioning about religious beliefs is employed to determine the validity of claims. This could lead to arbitrary denial of citizenship rights.[25]
CAA and NRC: Implications for Muslims
The possibility of a nation-wide National Register of Citizens (NRC) being implemented along with CAA has stoked fears of large-scale disenfranchisement. It is argued that CAA and NRC taken together violate Article 14 and 21 rights of Muslims since they create religious criteria for Indian citizenship.[26]
The NRC recently implemented in Assam excluded around 20 lakh applicants, many of whom are believed to be Muslims and long-term residents.[27] An all-India NRC along with CAA is likely to disproportionately exclude Muslims who will not be able to provide requisite documentary evidence of citizenship. While non-Muslims may find protection under CAA, Muslims will be rendered stateless.
The government has denied that NRC will be used to target any specific community. However, the possibility of its discriminatory use along with CAA remains a concern. Any exercise to document citizens should abide by the secular constitutional ethos rather than religious criteria.[28] The human cost of depriving genuine citizens of citizenship rights also needs to be considered.
Response of Muslim Groups to CAA
The main thrust of protests against CAA has been led by Muslim student groups, activists and certain non-BJP political parties. However, barring exceptions, major Muslim religious organizations have not actively mobilized against the CAA.[29]
The protests have innovatively used national symbols like the tricolor, Preamble, pictures of B.R. Ambedkar and Mahatma Gandhi to project an inclusive idea of citizenship. The focus has been on civil disobedience and constitutional methods of protest.[30] However, beyond symbolic value, the protests have not succeeded in channelizing substantive political opposition to the CAA.
Lack of ideological clarity, inability to form broad-based alliances with civil society groups and reluctance to translate street mobilization into an organized movement are factors impeding the efficacy of anti-CAA protests.[31] The protests also seem to lack a coherent legal and political strategy to compel formal repeal or even amendment of the CAA.
Conclusion
The CAA has brought the relationship between citizenship, secularism and democracy to the forefront. While the Act aims to provide expedited citizenship to minorities from three countries, its use of religion as a criterion remains problematic from a constitutional perspective.
Critics have argued that CAA violates Article 14, undermines secularism and gives unguided powers to the executive. Apprehensions that CAA along with a nation-wide NRC will exclude Muslims have amplified its divisive impact. The protests have questioned the majoritarian impulse behind CAA but have fallen short of building a broad-based movement against it.
The legal battle surrounding CAA is currently underway in the Supreme Court. However, beyond legalities, the Act has emerged as a symbol of the tensions underlying the current political discourse on citizenship. Managing the citizenship question in a pluralistic democracy like India requires an approach that prioritizes constitutional morality over religious majoritarianism. Policies that create religion-based classifications and enable discretionary denial of citizenship rights are antithetical to constitutional secularism.
The way forward is an inclusive citizenship policy that accommodates diversity and provides a sense of security and belonging to all groups, especially vulnerable minorities. As India celebrates 70 years of being a modern constitutional republic, the challenge is to reaffirm the substantive promise of equal citizenship guaranteed by the Constitution to every resident irrespective of their identity. The universalist vision of citizenship enshrined in India’s freedom movement and founding document remains relevant as an emancipatory ideal that can heal the ruptures created by CAA.
References
[1] The Citizenship (Amendment) Act 2019.
[2] The Citizenship Act 1955, s 2(1)(b).
[3] The Citizenship (Amendment) Act 2019, s 2.
[4] ibid s 3.
[5] The Citizenship Act 1955, s 5(1)(a)-(c).
[6] The Citizenship (Amendment) Act 2019, s 6(1).
[7] The Citizenship Act 1955, s 6(1).
[8] The Citizenship (Amendment) Act 2019.
[9] The Citizenship Act 1955, s 3(1)(a)-(c).
[10] ibid s 3(2).
[11] ibid s 4.
[12] ibid s 5(1).
[13] ibid s 6.
[14] ibid s 7.
[15] Sarbananda Sonowal v Union of India (2005) 5 SCC 665.
[16] The Citizenship (Amendment) Act 1986, s 3.
[17] The Citizenship (Amendment) Act 2003, s 3.
[18] The Citizenship (Amendment) Act 2005, s 3.
[19] The Citizenship (Amendment) Act 2015.
[20] Ministry of Home Affairs, ‘Standard Operating Procedure to be Followed by Competent Authorities to Grant Long Term Visa to Foreigners Belonging to Minority Communities from Afghanistan, Bangladesh and Pakistan Staying in India’ (29 December 2011) https://www.mha.gov.in/sites/default/files/SOP_29122011.pdf accessed 15 June 2020.
[21] The Passport (Entry into India) Amendment Rules 2015.
[22] The Passport (Entry into India) Amendment Rules 2016.
[23] Rajeev Dhavan, ‘CAA, NPR and NRC Will Weaponise Citizenship’ (The Hindu, 8 January 2020) https://www.thehindu.com/opinion/lead/caa-npr-and-nrc-will-weaponise-citizenship/article30507546.ece accessed 15 June 2020.
[24] Gautam Bhatia, ‘The CAA and Article 14: A Critique of the NRC Process’ (The Hindu, 16 January 2020) https://www.thehindu.com/opinion/lead/the-caa-and-article-14-a-critique-of-the-nrc-process/article30578372.ece accessed 15 June 2020.
[25] Shalini Bhargava Ray, ‘India’s New Citizenship Law Sparks Protests’ (The Diplomat, 16 January 2020) https://thediplomat.com/2020/01/indias-new-citizenship-law-sparks-protests/ accessed 15 June 2020.
[26] Alok Prasanna Kumar, ‘CAA, NRC and Lessons from 1905’ (The Hindu, 24 December 2019) https://www.thehindu.com/opinion/op-ed/caa-nrc-and-lessons-from-1905/article30387677.ece accessed 15 June 2020.
[27] Rahul Tripathi, ’19 Lakh People Left out of Final NRC in Assam’ (The Economic Times, 31 August 2019) https://economictimes.indiatimes.com/news/politics-and-nation/19-lakh-people-left-out-of-final-nrc-in-assam/articleshow/70911615.cms?from=mdr accessed 15 June 2020.
[28] Asaduddin Owaisi, ‘Owaisi: India’s Citizenship Act Further Marginalizes Muslims’ (Al Jazeera, 17 December 2019) https://www.aljazeera.com/indepth/opinion/india-citizenship-act-marginalises-muslims-191216104636645.html accessed 15 June 2020.
[29] Irfan Ahmad, ‘CAA: Muslim Groups Should Go Beyond Condemnation’ (National Herald, 26 December 2019) https://www.nationalheraldindia.com/opinion/caa-muslim-groups-should-go-beyond-condemnation accessed 15 June 2020.
[30] Nissim Mannathukkaren, ‘What Explains the Resistance to the Citizenship Amendment Act?’ (The Wire, 22 December 2019) https://thewire.in/rights/citizenship-amendment-act-protests accessed 15 June 2020.
[31] Hilal Ahmed, ‘Beyond condemnation and solidarity: A political strategy is needed to fight CAA’ (The Print, 27 December 2019) https://theprint.in/opinion/beyond-condemnation-and-solidarity-a-political-strategy-is-needed-to-fight-caa/339609/ accessed 15 June 2020.