A beginners guide to the Citizenship Amendment Act 2019

Introduction:

The Citizenship (Amendment) Act today holds a very negative connotation for the amount of dissent it has brought about, ever since the induction of the Citizenship amendment bill 2019 which was tabled in the winter session of the 17th Lok Sabha by the Union Home Minister Shri. Amit Shah on 9th December 2019. It was passed with an astonishing majority of 311-80 in the Lok Sabha, and a simple majority of 125-105 in the Rajya Sabha on 11th December 2019. This, incidentally meant that the Citizenship (Amendment) Act (henceforth CAA) would come into effect exactly a month later on 10th January 2020. It is noteworthy that this bill was first introduced in the year 2016, after which it was temporarily suspended and put up for review.

Preliminary view:

While the CAA is a widely debated and controversial piece of legislation, it is far more rewarding to understand it as a law and delve into its provisions rather than its ramifications.

Citizenship In India is provided in Part II of the Indian constitution, under Articles 5-11. For elaboration, Citizenship powers are wholly wielded by the Government as provided by Article 11, and it allows the Government of India to grant citizenship in five ways. Citizenship in India is founded on the principle of ‘jus Sanguinis’ which literally translates to ‘the right of blood’ and dictates the rules of citizenship assigning primacy to descent rather than on the place of birth. This is in stark contrast to the western inclination towards ‘jus Soli’ which literally translates to ‘the right of the soil’. hereby Citizenship is granted on conditions of descent, naturalization, matrimony, acquisition of territory, and by birth.

The original Citizenship Act was passed in the year 1955, which encompassed the determination of Indian citizenship. Surprisingly, until the year 1987, it was sufficient to be born in India, in order to be eligible for Indian citizenship. This is more along the lines of ‘Jus Soli’ than otherwise. The act provides for the deportation of persons declared as illegal migrants through The Foreigners Act of 1946, and The Passport Act of 1920. It is quite unsurprising that as regimes changed, the Citizenship Act of 1955 was amended a total of six times, in the years 1986, 1992, 2003, 2005, 2015, and 2019. This was under the leadership of Shri Rajiv Gandhi, Shri P.V.Narasimha Rao, Shri Atal Bihari Vajpayee, Shri Manmohan Singh, and Shri Narendra Modi respectively.

While the CAA garners heavy criticism for it’s supposed unconstitutionalism, let us understand what exactly it has changed, and whether it really stands out from the previous amendments to the Citizenship Act. 

(In picture- members of the ABVP rallying in support of the CAA)

Basis:

For starters, the Citizenship Act of India Debars all illegal immigrants from applying for citizenship through naturalization or on grounds of marriage, and for this purpose, regards all persons that enter into and reside in the territory of India without documentation, permission and by impersonation or deception as illegal immigrants. The subject of illegal immigration is of course, deeply intertwined with the affairs of the United Nations High Commission on Refugees (henceforth UNHCR) headed by Filippo Grandi. This is of significant importance, as will be reflected in the next lines.

While about 145 countries worldwide have signed the UNHCR Refugee Convention, India herself being a signatory to innumerable UN conventions is not a party to the one in question. This is by far attributed to the then PM of India Pandit Jawaharlal Nehru, who refused to sign, far from ratify the convention. This is understandable, as India then, freshly Independent was entitled to a more defensive stance. The UNHCR Refugee Convention embodies a core principle of ‘non-refoulment’ which speaks of the customary international law of not forcefully deporting illegal immigrants to their countries or provinces if they face religious, racial, or casteist persecution on the basis of their identities, which sufficiently endangers their life or serves as a cause for distress. 

Although India has not yet signed the convention on refugees, she is expected to abide by the principle of ‘non-refoulment’ despite not being legally bound by the convention. This would imply that any subversions by India can only be condemned by the UN, and cannot be brought to trial.

Now, having understood the above ideas, we become fit to interpret the ramifications of the CAA 2019. While this is a sensitive topic to touch upon, for the sake of posterity, I shall proceed objectively.

The Citizenship Amendment Act 2019 summarily provides that persons belonging to six religious groups- Hindu, Sikh, Parsi (Zoroastrian), Christian, Buddhist, and Jain belonging to any of the Three countries of – Pakistan, Afghanistan, or Bangladesh will be granted concessions in terms of being granted citizenship, provided they have entered the country illegally, or meet the criteria to qualify as illegal immigrants. The persons meeting the above requirements will be allowed to apply for citizenship via naturalization and will avail the additional benefit of being naturalized citizens of India following 5 years of residence, rather than the customary 11 years. However, the biggest determinant of the act demands that the above people have entered India (illegally) before or on the 31st of

December 2014.

While much of the debate is centered around the belief that the provision violates Article 14 of the Indian constitution (The fundamental right to equality), there are several more admissible arguments that this provision will encourage deliberate illegal migration into India, and further burden the already strained Indian population. The primary argument regards the CAA as violative to the basic structure of the Indian Constitution (as precedented in Kesavanandabharati Vs State of Kerala 1973.)The contention being that the basic structure cannot be tampered with, and lays the ground for wayward legislation. A majority of the review petitions filed in the Apex court also cite that the amendment violates Article 15 (the fundamental right against discrimination) and violates the secular nature of the State. 

These claims have been rubbished by the center, which claims that illegal Muslim migrants couldn’t possibly have faced persecution in the three Islamic nations of Pakistan, Afghanistan, or Bangladesh.

Some other concerns include the possibility of a nationwide National Register of Citizens (Henceforth NRC), which is closely related to the National population register (Henceforth NPR) and may require the normal residents of India to produce relevant documents in order to substantiate their citizenship, (in case it is suspect, or subject to review). 

In furtherance of this paranoia, the statement by the Union Home Minister Shri Amit Shah that the NPR is the first step to the NRC has ignited protests. This evidently challenges the innate identity of India’s plurality and makes her appear a lot less inclusive than she is. 

The NRC was an exercise initiated in the year 1951 in Assam and was updated recently in the year 2019, the process for which began in 2013. The exercise was continuously monitored by Justice Ranjan Gogoi (later CJI) and Justice Rohinton Fali Nariman of the Supreme Court. The exercise was administered by Prateek Hajela, an IAS officer. The recent NRC contained 31 million names and is said to have excluded 1.9 million names.

An important facet of the Citizenship (Amendment) Act 2019 is that it provides for exemptions to the territories of states under Schedule VI of the Indian Constitution- (Assam, Meghalaya, Mizoram, and Tripura), and States protected by the Inner Line permit (Arunachal Pradesh, Nagaland, Manipur, and Mizoram) as provided by the Bengal Eastern Frontier Regulation 1873. These states remain principally untouched for the purpose of demographic sanctity, and the preservation of the indigenous tribes, which had been agreed in the Assam Accord of 1985. 

Conclusion:

It is true that the CAA does not remain without controversy and has inflamed a series of protests, which more often than not culminate in violence and charges for inciting disaffection towards the state, apart from breeding communal hatred and disturbance. The need of the hour, however, is to maintain faith in the Judicial system, the constitutional grundnorm, and believe that Justice will prevail. 

Jai hind

References :

https://www.thehinducentre.com/resources/article30327343.ece

http://legislative.gov.in/sites/default/files/A1946-31.pdf