Reflections on the Constitutionality of the Indian Citizenship (Amendment) Act 2019

On December 12, 2019, the Indian Parliament passed a citizenship legislation – Citizenship (Amendment) Act 2019 (CAA) which triggered widespread protests across the country. The Indian government has clamped down these protests, often resorting to the excessive use of force, which has attracted widespread criticism nationally, and internationally. The political debates surrounding the new citizenship law oscillate between the idea of ‘ethnic and cultural nationalism’ reflected in the quest to transform India into a majoritarian Hindu nation-state, and that of ‘civic nationalism’ envisioning India as a political entity with multiple, overlapping identities coexisting as one nation. The purpose of this, however, is to provide an insight into the controversial provisions of the CAA and to reflect on the constitutionality of such provisions.

Citizenship Amendment Act 2019 – An overview

The issues related to citizenship in India are dealt with under the provisions of the Indian Constitution.[1] However, the provisions relating to citizenship under the Constitution are not exhaustive, and they deal only with issues relating to citizenship at the time of commencement of the Constitution. Article 11 of the Constitution empowers the Indian Parliament to make law for regulating matters relating to citizenship. Thus, the Parliament enacted the Citizenship Act 1955. Important to note, that it is the Union Parliament and not the state legislature which has exclusive competence to make laws related to citizenship.

The Citizenship Act 1955 defines illegal migrants under section 2(b) as a foreigner who has entered India without a valid passport, or other travel documents. Further, a foreigner who has entered India with a valid passport or travel document, but remains in India longer than he is permitted under those documents, is also considered as an illegal migrant.

The CAA has now added a proviso to Section 2(b) which defines ‘illegal migrants.’ The proviso creates an exception to the category of ‘illegal migrants’ by providing that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi, or Christian community from Afghanistan, Bangladesh, or Pakistan, who has entered India before 31st December 2014 shall not be treated as an illegal immigrant. However, in order to be not treated as an illegal migrant person/s from aforesaid six communities, from the aforesaid countries must have also been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government.

In this regard, it is important to note that in 2016, the Ministry of Home Affairs vide a series of notifications[2] has already exempted persons belonging to aforementioned communities from Afghanistan, Bangladesh, and Pakistan who have taken shelter in India on or before 31 December 2014 due to the fear of religious persecution, from Passports (Entry into India) Act, as well the Foreigners Act 1946.

Further, the CAA has added a new provision i.e. section 6(B) to the Citizenship Act 1955 outlining the process of the grant of citizenship to the persons from the aforementioned six communities, from the three countries. Section 6B provides that the Central Government of India may issue a certificate of registration as citizenship to the persons covered under provision to section 2(b), on an application made by them and provided that they fulfill the conditions under Section 5 of the Citizenship Act 1955. Alternatively, if such persons fulfill the criteria laid down in Section 6 of the Citizenship Act 1955, they can be granted a certificate of naturalization by the Government.

CAA has introduced an important exception in one of the conditions for the acquiring citizenship by way of naturalization i.e. the minimum period of residence or the service of Government. Generally, a person seeking citizenship through naturalization would have to show that he has resided in India or has been in the service of the government of India at least for 11 years. It is this period of 11 years which has been cut short to 5 years for a person falling under the new proviso introduced by CAA.[3]

In other words, the effect of CAA has been two-fold – first taking the persons belonging to the aforesaid specific religions and countries out of the category of ‘illegal migrants’; and second, putting them on fast-track for acquiring citizenship by naturalization by reducing the ‘minimum residence or service’ time period.

This means, that people belonging to the Muslim community who came to India illegally before 31st December 2014, even from Afghanistan, Bangladesh, or Pakistan shall continue to be treated as ‘illegal migrants.’ Consequently, they will not be able to acquire citizenship by registration or by naturalization, as one of the conditions for such acquisition is that the applicant must not be an ‘illegal migrant.’

Reflections on the Constitutionality of CAA

Any legislation must stand the test of constitutionality, which invariably involves the test of the legislation vis-à-vis Part III of the Indian constitution related to the fundamental rights.

Article 14 of the Indian Constitution ensures equality and equal protection of law to ‘any person……within the territory of India.’ CAA denies equal treatment to similarly situated persons existing within the territory of India on or before 31st December 2014. The Supreme Court of India’s emphasis on substantive equality under art. 14 in the recent case of Joseph Shine v Union of India[4] requires a determination of “…whether the provisions contribute to the subordination of a disadvantaged group of individuals.”[5] CAA intends to uplift persons belonging to certain communities and certain countries while leaving others in the disadvantageous condition. For instance, Ahmadiyas – a persecuted community in Pakistan, living in India as refugees, will be denied the benefit under CAA, whereas the refugees from any of the six communities will avail the benefit. Similarly, a Tamil persecuted from Sri Lanka, or a Buddhist from the Tibet region in China shall be deprived of the advantage under the CAA. Illegal migrants or refugees constitute a disadvantaged social group, and CAA by limiting its scope to six communities, and three countries perpetuate the subordination of persons of such group by refusing to provide an accelerated route to citizenship on ground of religion and country of origin.

Further, the CAA also fails to meet the traditional test of reasonable classification under art. 14. The test requires a rational nexus between the basis of classification and object of the legislation. The object of the CAA has been claimed to be to provide benefit to the persecuted religious minorities in the three neighbouring countries of India which have a formal state religion. This can be looked at from two perspectives.

First, if the object of the CAA is providing amnesty to persecuted minorities from Afghanistan, Bangladesh, and Pakistan, then it fails to take account of minorities such as Ahmadiyas in Pakistan. In doing so CAA discriminates between persecuted minorities on the basis of religion. Second, if the object is to provide fast track citizenship only to those individuals persecuted from countries having formal state religion, then India’s other neighbour Sri Lanka has been left out. Sri Lanka has what can be termed as the state religion – the Sri Lankan constitution obligating the State to protect and foster the Buddha Sasana. Tamils having recorded history of persecution in Sri Lanka have been left out of the classification created by the CAA.

Thus, it seems difficult to assert that there does exist a rational nexus between the object of CAA, and the classification that it has created in terms of the choice of religious communities and the countries of origin.

Apart from the apparent inconsistency with the art. 14 ensuring equality, the CAA also seems to violate art. 21 of the Indian constitution which guarantees persons living in Indian the right to life and personal liberty, which includes the right to live with dignity. By condemning Muslims migrants, or the migrants from other than the three countries living in India to live as illegal migrants, CAA denies personal identity, undermines autonomy over fundamental personal choices, and damages plurality and diversity.[6]

Most important of all, by invoking religion as the ground for classification, CAA attacks what is one of the foundational principles i.e. the basic structure of the Indian Constitution – secularism as held by the Indian Supreme Court in the case of S.R. Bommai v. Union of India.[7] CAA has made religion a ground for the attainment of citizenship – a doorway to all the other rights in a polity, which is clearly at odds with the concept of secularism.

The discriminatory nature of the CAA becomes further clear when juxtaposed with the creation of the National Register of Citizens in the north-eastern state of Assam. Around 19 lakh people have been found unable to prove their citizenship. Out of these 19 lakhs, around 13 lakh people who belong to the Hindu religion will be able to apply for citizenship through naturalization under the CAA, whereas the rest of them belonging to the Muslim community shall remain deprived of this opportunity, and may be sent to detention camps. The government of India proposes to conduct NRC process throughout the country, which is bound to create a huge uproar countrywide due to the inherent discrimination, and the disadvantage that CAA perpetuates on religious grounds.

PUSHKAR ANAND is Assistant Professor at the Faculty of Law, University of Delhi..