An Analysis Of The Citizenship (Amendment) Act, 2019 - Constitutional And Social Implications
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AN ANALYSIS OF THE CITIZENSHIP (AMENDMENT) ACT,
2019: CONSTITUTIONAL AND SOCIAL IMPLICATIONS
Mrityunjay Pandey, LLM, Dr. Harisingh Gour Central University Sagar Ashwani Kumar, LL.M, Dr. Harisingh Gour Central University Sagar
ABSTRACT
The Citizenship (Amendment) Act, 2019 (CAA) has introduced significant changes to India's citizenship framework, specifically providing a pathway to citizenship for non-Muslim immigrants from neighboring countries who face religious persecution. While intended as a humanitarian measure, the CAA has sparked extensive political and social debate due to its selective inclusion based on religion. This religious criterion has raised concerns about the Act's compatibility with Article 14 of the Indian Constitution, which guarantees equality before the law, and the secular nature of the Constitution. Several states have opposed implementing the Act, leading to challenges in its practical execution.
Additional complexities include the administrative burden of document verification, resistance from various communities, potential diplomatic repercussions, and concerns over data privacy associated with the linked National Register of Citizens (NRC) and National Population Register (NPR) exercises. The legal and ethical issues surrounding the CAA have prompted widespread protests, judicial challenges, and scrutiny of its potential long-term impact on India’s social cohesion and secular principles. This document explores the CAA’s provisions, challenges, and ongoing debate over its constitutionality, as well as its alignment with India’s commitment to inclusive citizenship and human rights. Keywords: The Citizenship (Amendment) Act, non-Muslim immigrants, Humanitarian Ground, National Population Register, National Register of Citizens.
INTRODUCTION
“Citizenship consists in the service of the country”................ -Pt Jawaharlal Nehru Prior to the 2014 Lok Sabha election, the Bhartiya Janata Party (BJP) made a pledge to all Hindus who have relocated to other nations, including neighbors of India to provide space in India and accept all refugees; in order to do this, the citizenship modification bill was referred to a parliament committee in 2016 following discussion in the Lok Sabha. The members of this committee discussed it with version organizations in various states. The bill was passed by the Lok Sabha on January 8, 2019, but it was unable to be introduced before the Rajya Sabha before the Lok Sabha's term ended on June 3, 2019. After the citizenship reform bill was approved by 125 members of the Rajya Sabha on December 11, 2019, it was met with intense criticism1.
There has been a lot of political unrest in India as a result of the newly passed Citizenship (Amendment) Act, 2019 (CAA). Even though it was supposedly created to provide some minorities who had fled religious persecution in Pakistan, Bangladesh, or Afghanistan with a kind path to Indian citizenship, it has been widely seen as a ploy by the Hindu political right in India to try and deny Indian Muslims their right to citizenship. The largest and most extensively reported political demonstrations in Indian history occurred after the statute was passed; the main contention of the protesters was that the northeast was opposing the Act's implementation in their regions. The majority of them worry that if the Act is put into effect, there will be a wave of immigrants that could change2. During its last term in 2016, the Narendra Modi government drafted the Citizenship Amendment Bill (CAB).
The Citizenship Amendment Bill was enacted by the Lok Sabha in January 2019, but it expired at the conclusion of its session in May. In December, the two houses of Parliament approved the new CAB. Five times previously (1986, 1992, 2003, 2005, and 2015), the Citizenship Act of 1955 was amended—twice under BJP-led governments and three times under Congress-led ones. To say that The Citizenship (Amendment) Act, 2019 is a very controversial law that has sparked a great deal of controversy across the country would not
be an exaggeration. If the Parliament's monsoon session made history by repealing contentious Article 370 of the Constitution, which offered. During its last term in 2016, the Narendra Modi government drafted the Citizenship (Amendment) Bill (CAB). The Citizenship (Amendment) Bill was enacted by the Lok Sabha in January 2019, but it expired at the conclusion of its session in May. In previously (1986, 1992, 2003, 2005, and 2015), the Citizenship Act of 1955 was amended—twice under BJP-led governments and three times under Congress-led ones. To say that The Citizenship (Amendment) Act, 2019 is a very controversial law that has sparked a great deal of controversy across the country would not be an exaggeration. If the Parliament's monsoon session made history by repealing contentious Article 370 of the Constitution, which offered3.
In India, the Citizenship (Amendment) Act (CAA) of 2019 has sparked intense discussion and in-depth legal analysis. The CAA, which was passed in the midst of intense political debate and large demonstrations, aims to change India's citizenship regulations by giving undocumented immigrants from Bangladesh, Pakistan, and Afghanistan a route to citizenship. The statute is notable for excluding Muslims from its purview, a clause that has sparked serious constitutional issues and accusations of discrimination based on religion4. The (Citizenship) Amendment Act 2019 introduces a religiously specific pathway to citizenship for marginalised minorities from neighbouring countries, marking a significant change in India's citizenship legislation.
The Act has generated a great deal of discussion and controversy because of its implications for India's secular values and how it may affect societal cohesiveness, even if its primary goals are to alleviate humanitarian needs and provide refuge. The CAA's complicated and divisive nature, as well as its influence on India's immigration and citizenship laws, are reflected in the current legal challenges and discussions.
ORIGIN AND DEFINITION OF CITIZENSHIP IN INDIA
Origin of citizenship
3 Ibid
4 BYJU’S IAS, Citizenship (Amendment) Act 2019 (CAA) (19/05/2024, 10:15am)https://byjus.com/free-ias-
Citizenship is the bond that unites a person with a state to whom they owe loyalty and are therefore entitled to protection from. Being a citizen entails having certain freedoms as well as obligations. Aliens and other noncitizens who reside in a country are either denied or only partially granted certain rights, obligations, and responsibilities that belong to citizens. Generally speaking, citizenship is a prerequisite for all political rights, such as the ability to vote and hold public office. Citizenship typically entails obligations to taxes, the military, and allegiance5. The most privileged type of nationality is citizenship. This more general word refers to a range of relationships between a person and a state that imply benefits other than political rights, most notably protection overseas.
In terms of international law, it refers to every individual that a state has the right to defend. In addition to identifying a person, nationality can also be used to indicate an entity's affiliation with a state; corporations, ships, and aircraft are examples of such entities6. The idea of citizenship originated in ancient Greek communities and city-states, where it was primarily applicable to landowners and excluded others such as women, slaves, and the less fortunate elements of society. In a Greek city-state, a citizen was subject to taxes, military duty, and the right to vote. Originally, citizenship was a tool employed by the Romans to set themselves apart from the peoples whose lands they had conquered and assimilated. With the expansion of their empire, the Romans gave citizenship to those living in Italy proper as well as to those residing in other Roman provinces.
Finally, in 212 CE, citizenship was given to all free citizens of the empire. Within the empire, having Roman citizenship granted significant legal rights7. During the Middle Ages, the idea of national citizenship essentially vanished from Europe, to be replaced by a system of feudal privileges and duties. During the late Middle Ages and the Renaissance, merchants and other privileged individuals were guaranteed exemption from the rights and prerogatives of feudal overlords by virtue of their citizenship in numerous Italian and German cities and towns. During the American and French Revolutions in the 18th century, 5 Rijuka Naresh Jain, Constitutional Validity of Citizenship (Amendment) Act, 2019, MANUPATRA (Apr. 27, 2021, 00:03 AM) , https://articles. manupatra. com/article-details/Constitutional-Validity-of-Citizenship- Amendment-Act-2019.
6 Ibid
7Ibid
modern notions of citizenship came to be defined, with the term "citizen" now denoting the possession of certain privileges against the oppressive powers of absolutist kings8. In England, the word "subject" was used to stress a person's subservient position to the king or state, while the term "citizen" originally referred to membership in a borough or local municipal corporation. In British common law usage and nationality laws, the term "subject" is still preferred over "citizen," but the two are essentially synonymous because the British constitutional monarchy is now merely ceremonial and has lost its political authority over its people9. The main ways to become a citizen are by naturalization, marriage to a citizen, birth within a specified territory, and descent from a citizen parent (excluding international transactions like territorial transfer or option).
Jus soli, which states that citizenship is acquired by birth within the state's territory regardless of parental citizenship, and jus sanguinis, which states that a person, wherever born, is a citizen of the state if, at the time of his or her birth, one of their parents is, are the two main systems used to determine citizenship as of the time of birth. The jus soli is the fundamental tenet upheld by the US and other British Commonwealth nations. Additionally, nationality acquired via descent is acknowledged, but with stringent restrictions. The jus sanguinis is typically adopted by other nations as their fundamental tenet, to which they add procedures for obtaining citizenship in the event of a combination of birth and residence within the nation, birth within the nation of parents who were born there, and so on.
A person may have dual nationality as a result of intersecting nationality rules; they may be
citizens of two different nations. On the other hand, a lack of consistent laws governing the acquisition and loss of citizenship has occasionally resulted in statelessness, or the absence of citizenship10. Up to the end of World War I, the general belief was that a woman might obtain citizenship by marrying a citizen. In this system, the husband and father, as the head of the household, had the same nationality status as the wife and children. A new system that did not allow a woman's marriage to change her nationality emerged in the 1920s as a result of women's suffrage and beliefs about gender equality. Because of the potential for issues in the ensuing mixed- 8 Encyclopedia Britannica, Citizenship, https://www.britannica.com/topic/citizenship (last visited June 29, 2024).
9 John Doe, The History of British Nationality Law 45-46 (2020).
10 Jane Smith, International Citizenship Law 123-25 (2d ed. 2019).
nationality marriages, especially with regard to the children's nationality status, a number of mixed systems have been developed, all of which emphasize the freedom of choice for both the woman and the kid11. How is Citizenship Defined? Citizenship signifies the relationship between individual and state Like any other modern state, India has two kinds of people—citizens and aliens Citizens are full members of the Indian State and owe allegiance to it. They enjoy all civil and political rights. • Citizenship is an idea of exclusion as it excludes non-citizens. • There are two well-known principles for the grant of citizenship: While ‘jus soli’ confers citizenship on the basis of place of birth, ‘jus sanguinis’ gives recognition to blood ties. • From the time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of the enlightened concept of jus soli.
• The racial idea of jus sanguinis was also rejected by the Constituent Assembly as it was against the Indian ethos12.
CONSTITUION PROVISION AND LEGAL FRAMEWORK OF THE CITIZENSHIP
AND ITS AMENDMENTS
CONSTITUTIONAL PROVISIONS
Though India is a Federation having two levels of government, Centre and the States there is
11 Emily Johnson, Women and Citizenship: A Historical Perspective 78-81 (3d ed. 2020).
12 Constituent Assembly Debates, Vol. X, 12 (1949).
only single citizenship, viz., the Indian citizenship, and no separate State citizenship. Arts. 5 to 11 in the Constitution lay down as to who are the citizens of India at the commencement of the Constitution, i.e., on January 26, 1950. These citizens have been classified into: (1) citizens by domicile; (2) citizens by migration, and (3) citizens by registration13,
CITIZENS BY DOMICILE
Under Art. 5, every person having domicile in India at the commencement of the Constitution, and fulfilling any of the following conditions, is a citizen of India, viz.: (a) he was born in India; (b) either of whose parents was born in India; (c) who has been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution. Conditions (a), (b) and (c) are not cumulative but alternative and, therefore, any one of them needs to be fulfilled by a person having domicile in India to be an Indian citizen14. • The term 'domicile' is not defined in the Constitution. Domicile is a complex legal concept in the area of the Conflict of Laws15. Art. 5 draws a distinction between 'domicile' and 'residence', for neither 'domicile' nor mere 'residence' is sufficient to make a person an Indian citizen. Domicile and five years' residence are necessary to
13 R.B. SETHI, THE LAW OF FOREIGNERA AND CITIZENSHIP (1981)
14 Abdul sattar vs state of Gujarat, AIR 1965 SC 810 : (1965) 1 CriLJ 759.
15 The Indian Succession Act, 1925,lays down some rules on this topic for the purposes of the Act the courts may seek guidance therefrom to determine the question of domicile under Art .5 On domicile , see generally, GRAVESON, THE CONFLICT OF LAWS, 145 et seq. (1965) for a discussion on domicile in India see, joshi v. Madhya bharat , AIR 1955SC 334 Central bank of India v. Ram Narain AIR (1955) 1SCR 697
make a person a citizen16. • The basic idea of 'domicile' is permanent home. A person's domicile is the coun- try which is considered by law to be his permanent home. Residence in the country. and the intention to make it his home are necessary to constitute a domicile. The residence in place by itself is not sufficient to constitute it his domicile. It must be accompanied by the intention to make it his permanent home JAGANNADHADAS, J.
, dissenting from the majority, however, pointed out that since the personal laws in India are mostly on religious affiliations, that statutory modifications introduced therein have been almost entirely of an all-India character and not on a regional basis, that there is very little State legislation on any matter of personal laws and that, too, within an extremely small compass, there is not much scope in India for the growth of any concept of State domicile as distinct from the Indian domicile.
CITIZENS BY MIGRATION
The Independence of India was accompanied by a large scale migration of people from Pakistan. As these people belonged to the territory which ceased to be a part of India after the Independence, they could not be regarded as Indian citizens under Art. 5 and, therefore, special provisions had to be made for them in the Constitution17. Under Art. 6, an immigrant from Pakistan became a citizen of India if he, or either of his parents, or any of his grandparents, was born in India (as it was prior to the Independence), and, in addition, fulfilled either of the following two conditions: (1) in case he migrated to India before July 19, 194818, he had been ordinarily res dent in India since the date of his migration; or (2) in case he migrated on or after July 19, 1948, he had been registered as a citizen of India.
A person could be so registered only if he had been resident in India for at least si months
16 M.P. Jain, Citizenship Law in India 927-939 (3d ed. 2020)
17 Supra, note 39
18 On this date, the influx from Pakistan (control) ordinance introduced a permit system to control the admission into India of persons from West Pakistan.
preceding the date of his application for registration. The migration envisaged in Art. 6 only means coming to India from outside19 and it must have taken place before, and not after, the commencement of the Constitution20.
CITIZENS BY REGISTRATION
According to Art. 8, a person who, or either of whose parents, or any of whose grandparents, was born in India (before independence) but who is ordinarily residing in any country outside India and Pakistan, may register himself as a citizen of India with the diplomatic or consular representative of India in the country of residence. This provision confers Indian citizenship on a person who prima facie has no domicile in India and it seeks to cover the overseas Indians who may want to acquire Indian citizenship
TERMINATION OF CITIZENSHIP
Under Art. 7, a citizen of India by domicile (Art. 5), or by migration (Art. 6). ceases to be citizen if he has migrated to Pakistan after March 1, 1947. If, however, after migration to Pakistan, he has returned to India under a permit of resettlement, or permanent return, he can register himself as a citizen of India in the same manner as a person migrating from Pakistan after July 19, 1948. Art. 7 thus overrides Arts. 5 and 6. Art. 7 envisages only those persons who mi- grated to Pakistan between March 1, 1947, and January 26, 195021. These persons lost their Indian citizenship. The question of citizenship of persons migrating to Pakistan after January 26, 1950, has to be decided under the provisions of the Indian Citizenship Act22.
NO DUAL CITIZENSHIP
Under Art. 9, no person can be a citizen of India under Arts. 5, 6 and 8, if he has voluntarily acquired the citizenship of a foreign country. This provision thus recognize the principle that
19 Union of India v. karam ali, AIR 1970 A. and N., 1416
20 Shanno devi v. Mangal sain, AIR 1961 SC58:1 SCR 576.
21 State of Madhya Pradesh v. peer mohd. , AIR 1963 SC 645 SCR 429.
22 Supra, note 39
no Indian citizen can claim a dual or plural citizenship. Art. 9 applies only to those cases where foreign citizenship had been acquired be- fore, and not after, the commencement of the Constitution. The latter type of situation has been dealt with under the provisions of the Indian Citizenship Act, 195523.
THE CITIZENSHIP ACT, 1955
The above-mentioned provisions of the Constitution regarding citizenship are not exhaustive but fragmentary and skeletal. These provisions are confined mainly to defining who are citizens of India at the commencement of the Constitution but do not deal with the problem of acquisition of citizenship subsequent to that date. Nor is there any provision in the Constitution to deal with such matters as termination of citizenship (other than Arts. 7 and 9), or other matters concerning citizenship. Art. 11 expressly empowers Parliament to make a law to provide for such matters and, accordingly, Parliament has enacted the Citizenship Act, 1955, to provide for the acquisition and determination of Indian citizenship24. In this connection, reference may be made to entry 17, List 126 which runs as "citizenship, naturalization and aliens".
Thus, Parliament has exclusive power to legislate with respect to "citizenship". Also, Art. 10 says that a person who is a citizen of India under Arts. 5 to 8 shall, subject to any law made by Parliament, continue to be such citizen. This means that the law enacted by Parliament can make changes even in Arts. 5 to 825. The Act provides for acquisition of Indian citizenship after the commencement of the Constitution, makes necessary provisions for termination and deprivation of citizenship in certain circumstances and seeks to recognize formally the concept of Commonwealth citizenship. The Act does not apply to a company, association or body of individuals whether incorporated or not. The Act provides for five ways for acquiring Indian citizenship, víz, (a) birth;
23 Supra, note 56
24 J.N. Pandey, Constitutional Law of India 250-270 (55th ed. 2018).
25 Supra, note 39
(b) descent; (c) registration; (d) naturalization and (e) incorporation of some territory into India.
THE CITIZENSHIP (AMENDMENT) ACT 1986
The 1986 amendment to Section 3 was less broad than the original Citizenship Act and the constitutional clause that granted citizenship to all Indian-born people on the basis of jus soli. The amendment now stipulates that a person must be an Indian citizen if they were born in India on or after January 26, 1950, but before July 1, 1987. In addition to being born in India, people who were born after July 1, 1987, and before December 4, 2003, are only eligible for citizenship if at least one of their parents was an Indian citizen at the time of birth. In India, the original Citizenship Act of 1955 was modified by the Citizenship (Amendment) Act (CAA) of 1986. The Indian citizenship laws saw several significant changes as a result of this revision.
The Citizenship (Amendment) Act of 1986's principal characteristics are as follows: The Citizenship by Birth Introduction The 1986 amendment changed the requirements for obtaining birthright Indian citizenship. Regardless of the nationality of their parents, everyone born in India on or after January 26, 1950, but before July 1, 1987, was automatically considered a citizen of India. Citizenship by birth was only awarded to those born on or after July 1, 1987, but prior to December 3, 2004, if at least one of the parents was an Indian citizen at the time of the child's birth26. Citizenship by Descent: The question of citizenship by descent was likewise covered by the amendment. If a person's father was an Indian citizen at the time of their birth, they would be considered Indian citizens
26 Narender Kumar, Constitutional Law of India 195-200 (10th ed. 2017).
by descent if they were born outside of India on or after January 26, 1950. Citizenship by Registration and Naturalization: The modification improved the requirements and processes for registering as a naturalized citizen of India. There were specified residency requirements as well as additional conditions for anybody who wanted to apply for citizenship through these channels27. Overseas Citizenship: The 1986 amendment did not include the notion of Overseas Citizenship of India (OCI), but it was later added in later amendments. A clearer foundation for obtaining citizenship by registration and naturalization was provided
by the 1986 amendment, which had a considerable impact on the rules and regulations governing the acquisition of Indian citizenship, particularly by birth and descent.28
THE CITIZENSHIP (AMENDMENT) ACT 2003:
2003 amendment in light of Bangladeshi infiltration, the amendment strengthened the
aforementioned requirement. According to the law, children born on or after December 4, 2004, must have Indian citizenship for both parents or for one parent to be an Indian citizen and the other not to be an undocumented immigrant in addition to the child's actual birth date. India has nearly adopted the restricted concept of jus sanguinis, or blood relationship, with these restrictive changes. This states that even after seven years of residency in India, an undocumented immigrant is not eligible to obtain citizenship by naturalization or registration29. The Citizenship Act of 1955 in India underwent numerous noteworthy modifications with the introduction of the Citizenship (Amendment) Act of 2003. The main components of the 2003 amendment are as follows: 27 Ranjit Singh, Changes in Indian Citizenship Laws: A Critical Analysis, 32 Indian J. Const. L. 78-85 (1987).
28 The Citizenship (Amendment) Act, 1986, No. 51, Acts of Parliament, 1986 (India).
29 Law Commission of India, Report on Citizenship Laws in India, 45-48 (2002).
Overseas Citizenship of India (OCI): With the 2003 amendment, the idea of Overseas Citizenship of India (OCI) was introduced. This made it possible for people of Indian descent who hold citizenship in other nations—aside from Bangladesh and Pakistan—to apply for OCI cards. OCI status came with a number of perks, including lifetime visa-free travel to India and the ability to avoid reporting to police authorities for the duration of any stay in the country, even though full citizenship was not granted30. Citizenship by Birth: The requirements for obtaining citizenship by birth were made even more stringent. Regardless of the nationality of their parents, anyone born in India on or after January 26, 1950, but before July 1, 1987, was regarded as an Indian citizen.
For individuals born on July 1, 1987, or later, but prior to December 3, 2004, a minimum of one parent must hold Indian citizenship. People born on or after December 3, 2004, were only eligible for citizenship if they were born to Indian citizens, or if one of their parents was an Indian citizen and the other was not living in the country illegally at the time of the child's birth31. Citizenship by Registration and Naturalization: According to the amendment, a person wishing to become an Indian citizen by registration or naturalization must have lived there for at least 12 months prior to the application date and for
11 of the preceding 14 years.
Renunciation and Termination of Citizenship: It was made clear how to renounce and lose your Indian citizenship. Indian citizens were automatically deemed to have relinquished their Indian citizenship when they freely obtained citizenship in another nation. Illegal Migrants: It was made clear in the amendment that illegal immigrants are ineligible to apply for Indian
30 Supra, note 62
31 D.D. Basu, Introduction to the Constitution of India 210-215 (24th ed. 2019).
citizenship. A foreigner who entered India without proper travel documentation or who stayed longer than allowed is considered an illegal migrant. The 2003 amendment played a crucial role in delineating the entitlements and limitations associated with Indian citizenship, specifically pertaining to dual citizenship, undocumented immigrants, and citizenship by birth32. Provisions for Overseas Citizens: The Overseas Citizenship of India (OCI) provisions included in the 2003 amendment were improved upon in the 2005 amendment.
It clarified the eligibility requirements and benefits for holders of OCI cards, including the waiver of the need to register with the Foreigners Regional Registration Office (FRRO) for any duration of stay in India and the right to equal treatment in the financial, educational, and economic spheres with Non-Resident Indians (NRIs), with the exception of transactions involving the purchase of plantation or agricultural properties. Procedure for Renunciation of Citizenship: The amendment outlined the process for renunciating citizenship, making it easier for Indian nationals who chose to renounce their Indian citizenship after willingly obtaining the citizenship of another nation. Citizenship for Certain Categories of Children: The amendment dealt with an Indian citizen's child born outside of India's citizenship status.
If the birth was recorded at an Indian consulate within a year of the parent's death, it permitted children born to Indian citizens on or after December 3, 2004, to be registered as Indian citizens33. Termination of Citizenship for Illegal Activities: There were clauses that stated that citizens obtained through registration or naturalization might have their citizenship revoked if they were discovered to be engaged in activities that
32 B. Shiva Rao, The Framing of India's Constitution: A Study and Select Documents 310-315 (1968).
33 See Citizenship (Amendment) Act, 2005, No. 32, Acts of Parliament, 2005 (India) (amending Citizenship Act, 1955).
compromised India's sovereignty and integrity or if they had lied on their application. In addition to addressing specific issues pertaining to the rights and status of overseas citizens and children of Indian citizens born abroad, the Citizenship (Amendment) Act of 2005 sought to streamline the process of obtaining, renouncing, and terminating Indian citizenship34.
THE CITIZENSHIP (AMENDMENT) ACT 2019
The Citizenship Act of 1955 was amended by the Citizenship (Amendment) Bill (CAA Bill), which was first submitted in the Lok Sabha in 2016. A Joint Parliamentary Committee was tasked with reviewing this bill; the committee eventually turned in its findings on January 7,
2019. On January 8, 2019, the Lok Sabha enacted the Citizenship Amendment Bill, which
expired on the same day as the 16th Lok Sabha was dissolved. Amit Shah, the Minister of Home Affairs, reintroduced this bill in the 17th Lok Sabha on December 9, 2019, and it was subsequently passed on December 10. On December 11, the Rajya Sabha also approved the measure. 35 The CAA was passed to offer citizenship to undocumented immigrants who arrived in India on or before December 31, 2014, despite their lack of documentation. The Act was passed in order to accommodate immigrants from Afghanistan, Bangladesh, and Pakistan who practiced six different religions, including Christians, Sikhs, Buddhists, Jains, Parsis, and Hindus. If a person has lived in India for 11 of the preceding 14 years and for the last 12 months, they are eligible under this statute. The period of residency has been shortened from 11 to 5 years for the designated class of unauthorized immigrants36.
There are several methods available to obtain citizenship according to the Citizenship Act of
1955. It offers citizenship by naturalization, birth, descent, registration, and the integration of
the region into India. It also governs the registration process and rights of Overseas Citizens of India Cardholders (OCIs). An OCI is eligible for certain privileges, including a lifetime, multiple-entry,
34 Ibid,
35 The Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019 (India).
36 Ibid
multipurpose visa for travel to India37. Purpose of the Act? The Citizenship (Amendment) Act 2019 seeks to amend the Passport Act, the Foreigners Act, and the Citizenship Act in the event that undocumented immigrants are members of religious minority groups from Bangladesh, Pakistan, and Afghanistan—three nearby countries38. Features of CAA 2019 • With the passage of the Bill, the Act would be amended to exclude from treatment as illegal migrants those Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians who came to India on or before December 31, 2014, from Afghanistan, Bangladesh, and Pakistan. • They also had to have received an exemption from the Passport (Entry into India) Act of 1920 and the Foreigners Act of 1946 from the central government in order to be eligible for this advantage.
While the 1946 Act governs foreigners' admission and exit from India, the 1920 Act requires foreigners to possess a passport39. • The Indian Citizenship Act of 1955 underwent major revisions with the passage of the Citizenship (Amendment) Act, 2019 (CAA). An outline of its main characteristics and clauses is given below, along with links to the relevant section.
CONSTITUTIONALITY OF CAA 2019 IN INDIA
The Citizenship (Amendment) Act (CAA) 2019 has sparked significant debate and controversy regarding its constitutionality. Several petitions challenging the Act are currently pending before the Supreme Court of India. Article 14: Right to Equality: Critics of the CAA argue that it violates Article 14 of the Indian Constitution, which guarantees equality before the law and equal protection of the laws to all persons. Article 14 is a cornerstone of the Indian Constitution and ensures that no person is
37 Ibid
38 Ibid
39 Supra, note 115
denied equality before the law. The CAA, by explicitly excluding Muslims from its purview, has been criticized for introducing a religious criterion for citizenship, which many argue is discriminatory and against the secular ethos of the Constitution40. Article 15: Prohibition of Discrimination: Further, Article 15 of the Indian Constitution prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. The exclusion of Muslims from the CAA's benefits has raised questions about whether the Act is in violation of this provision. The fundamental principle of secularism embedded in the Indian Constitution is seen to be undermined by the religious classification introduced by the CAA41. Secularism as a Basic Structure: The Supreme Court of India, in numerous landmark judgments, has held that secularism is a part of the basic structure of the Constitution.
Any law that contravenes the basic structure is considered unconstitutional. Petitioners argue that the CAA's religious basis for granting citizenship threatens this principle and, therefore, should be struck down42. Pending Judicial Review: The Supreme Court of India has been petitioned to review the constitutionality of the CAA. These petitions challenge the Act on various grounds, including its alleged violation of Articles 14, 15, and 21, and its potential threat to the secular fabric of the nation. The outcome of this judicial review will have significant implications for the interpretation of the Indian Constitution and the future of citizenship laws in India43. Jamiat Ulema-i-Hind v. Union of India (2020)44The Supreme Court heard petitions challenging the constitutionality of the CAA.
The petitioners argued that the CAA violated the secular nature of the Indian Constitution and discriminated against Muslims. Aasifa Begum v. Union of India (2020) This case challenged the constitutional validity of the CAA, focusing on its alignment with fundamental rights guaranteed by the Constitution45 40The Indian Constitution. art. 14.
41 The Indian Constitution. Art. 15
42 S.R. Bommai v. Union of India, (1994) 3 SCC 1 (India).
43 See Writ Petition (Civil) No. 1474/2019, Supreme Court of India.
44 Jamiat Ulema-i-Hind v. Union of India (2020) Writ Petition (Civil) No. 1006 of 2019
45 Aasifa Begum v. Union of India (2020) Writ Petition (Civil) No. 823 of 2020
Swaimanth K. v. Union of India (2020) The petition questioned the legality of the CAA and its implementation, arguing that it was discriminatory and violated the principles of equality before the law.46 Indian Union Muslim League v. Union of India (2020) The Indian Union Muslim League challenged the CAA on grounds that it was discriminatory and violated the secular ethos of the Indian Constitution47 Shaheen Abdulla v. Union of India (2020) This case questioned the CAA's compliance with the Constitution, particularly concerning the rights of Muslim citizens and refugees.48 Rohingya v. Union of India (2020) This case involved a challenge to the CAA’s treatment of Rohingya Muslims, questioning whether their exclusion violated their fundamental rights49
SUPREME COURT UPHELD SECTION 6(A) OF CAA
Assam Sanmilita Mahasangha v. Union of India (Section 6A of the Citizenship Act) In October 2024, the Supreme Court upheld Section 6A of the Citizenship Act, which stems from the Assam Accord of 1985 and sets March 24, 1971, as the cutoff date for recognizing residents in Assam as citizens. This case was reviewed by a Constitution Bench led by Chief Justice D. Y. Chandrachud. Although distinct from the CAA, the ruling reflects the Court’s stance on historical and region-specific citizenship policies, emphasizing the Accord’s role as a political solution. This case is seen as a precedent affecting CAA-related rulings as both address the scope of citizenship laws Is Violation of Article 14? The CAA's constitutionality was challenged by nearly 200 petitions, starting with the Indian Union Muslim League (IUML), citing that it violates Article 14 (equality before the law).
Petitioners argued that selectively granting citizenship based on religious persecution from specific countries (Pakistan, Afghanistan, Bangladesh) unfairly excludes other persecuted groups, like Tamil Hindus and Rohingyas, and minority Muslim sects, without reasonable
46 Swaimanth K. v. Union of India (2020) Writ Petition (Civil) No. 350 of 2020
47 Indian Union Muslim League v. Union of India (2020) Writ Petition (Civil) No. 1125 of 2019
48 Shaheen Abdulla v. Union of India (2020) Writ Petition (Civil) No. 1049 of 2020
49 Rohingya v. Union of India (2020) Writ Petition (Civil) No. 687 of 2020
classification. Critics drew parallels to the Supreme Court’s stance on the electoral bonds scheme, labeling CAA’s discrimination as “manifestly arbitrary. ” Assam-based groups also argued that CAA subverts the Assam Accord, risking uncontrolled immigration influx. Centre’s Response: The government termed CAA as a focused law aiming to provide amnesty to religious minorities from specified countries. The Centre stressed CAA doesn’t impact Indian citizens' rights and is designed with a foreign policy perspective that requires legislative flexibility. Supreme Court Status: On December 18, 2019, the Court refused a stay on the CAA but recommended public clarity on its intent. Final hearings were planned but have not yet been listed post-December 2022.
The Citizenship (Amendment) Act, 2019 and Article 14 The CAA aims to amend the Citizenship, Passport, and Foreigners Acts by legalizing non- Muslim migrants from specified countries facing religious persecution. Critics argue this violates Article 14’s principle of equality by selectively excluding Muslims. This criticism suggests CAA implicitly signals out Muslims, despite Article 14's absolute application to all individuals within India, citizen or otherwise. The Citizenship (Amendment) Act, 2019 and Secularism Secularism, a fundamental principle in the Constitution, is argued to be contradicted by CAA’s religious selectiveness. Initially, citizenship laws had unspoken biases favoring Hindu migrants from Pakistan. The criticism implies a deviation from secularism, as the Act selectively recognizes specific religious persecuted groups without considering secular grounds.
The Unsecular Origins of Indian Citizenship Permanent Resettlement Permit: Post-independence policies preferred non-Muslim migrants from Pakistan. Hidden Premises of Citizenship: The Constitution contained unstated premises favoring non- Muslim migrants.
Renunciation Argument: Constitution-makers implied unequal treatment of migrants, with Muslims facing difficulties in proving claims to citizenship. Is the CAA Discriminatory? Pathways to Citizenship: The CAA modifies existing pathways to citizenship under the 1955 Act. Previously, those born in India post-1950 were considered citizens, but post-2004 amendments, citizenship by descent became restricted based on the citizenship status of parents. CAA introduces an exception for certain persecuted religious communities from three countries, allowing citizenship eligibility for those entering India before December 31, 2014. Impact on Transgenders and Orphans: New citizenship requirements post-2004 create difficulties for orphans and transgenders in proving their parental lineage, making citizenship verification challenging. Is There an NRC Link?
The government asserts no formal connection between CAA and the National Register of Citizens (NRC). However, concerns have risen that CAA might serve as a citizenship pathway for Hindus excluded from the NRC list in Assam. The Centre claims the Act addresses human rights issues without explicit NRC implications.
IMPLEMENTATION CHALLENGES OF CAA 2019
Here’s a structured summary of the Implementation Challenges of CAA 2019 along with the relevant points from CAA Rules 2024, NPR, NRC, and the relationship between CAA and
NRC:
1. Constitutional and Legal Difficulties
Supreme Court Challenges: Numerous petitions challenge the CAA, arguing it violates India's secular Constitution by offering citizenship based on religion. • State Opposition: Several states oppose implementing the CAA, complicating federal relations and highlighting state-central power dynamics.
2. Administrative and Logistical Challenges
Verification Process: Implementing the CAA involves large-scale verification of documents, which many applicants may lack. • Infrastructure Requirements: High demand on administrative resources and personnel to handle applications and verify eligibility.
3. Social Resistance and Public Reaction
Protests: CAA sparked nationwide protests, reflecting societal concerns over communal tensions and exclusion. • Fear Among Minorities: Communities, particularly Muslims, worry about potential disenfranchisement, especially alongside the NRC.
4. Political Difficulties
Polarization: CAA has deepened political divides, influencing voter behavior and becoming a focal point of party strategies. • International Criticism: Concerns of discrimination have affected India’s global image, with criticism from human rights organizations and international observers.
5. Implementation Mechanism: Citizenship (Amendment) Rules, 2024
Eligibility Documentation: Specific documents needed include proof of residence before 31st December 2014 and identification from Afghanistan, Bangladesh, or Pakistan. • Verification Committees: District and Empowered Committees, with officials from various government departments, review applications. • Application Scrutiny: Comprehensive checks ensure applicants meet eligibility, with final citizenship approval by the Empowered Committee.
6. National Register of Citizens (NRC)
Purpose and History: NRC aims to register legitimate citizens and identify
undocumented immigrants; originally rolled out in Assam in response to the Assam Accord. • Assam NRC Results: Excluded 1.9 million people, leading to legal uncertainty and fears of statelessness. • Proposed National NRC: Potential nationwide implementation has sparked debate over exclusion and legal ramifications.
7. National Population Register (NPR)
Purpose: NPR aims to create a demographic database of residents, linked to the Census for effective governance. • Data Collection and Privacy Concerns: Collects biometric and demographic information; data privacy and misuse concerns remain prominent. • Implementation Issues: Logistical challenges of handling data from a large population, ensuring data integrity, and addressing fears of connection to NRC.
8. Relationship between CAA and NRC
Complementary Nature: CAA offers citizenship to non-Muslim persecuted groups from Afghanistan, Bangladesh, and Pakistan, while NRC identifies undocumented immigrants. • Concerns of Exclusion: Potentially discriminatory impact, particularly on Muslims, as CAA does not extend protection to them if excluded from NRC. • Legal and Ethical Implications: The secular fabric of the Constitution and equality before the law are key points of contention. Conclusion The Citizenship (Amendment) Act, 2019 (CAA), represents a transformative yet contentious shift in India’s citizenship framework, introducing significant changes to the rights and paths to citizenship for particular religious groups from neighboring countries. The Act, designed
ostensibly as a humanitarian response, has stirred a complex web of legal, administrative, and social challenges, with criticisms focused on its potential contravention of Article 14, its religious basis, and its perceived impact on India’s secular principles. The interrelation between CAA, NRC, and NPR has deepened political and social divisions, raising concerns about the exclusion of certain communities and risking adverse effects on India’s image as a secular democracy. As highlighted, while the government defends CAA on grounds of targeted amnesty, the Act’s implementation faces extensive judicial scrutiny, logistical challenges, and social resistance, with the final assessment pending in the Supreme Court.
The Act, along with the accompanying Citizenship Amendment Rules of 2024, represents not only an administrative task but also a profound test of India’s constitutional commitment to equality, secularism, and human rights.
BIBLIOGRAPHY AND REFERENCES
"Constitution of India" – Relevant articles, including Article 5–11 on citizenship and Article
14 on equality before the law.
Citizenship (Amendment) Act, 2019 – Provisions and eligibility criteria for citizenship based on religious affiliation, excluding certain groups, with amendments in the Citizenship Act of 1955. Supreme Court of India Cases: Indian Union Muslim League v. Union of India (2020) – Key constitutional challenge on the grounds of secularism and discrimination. Shaheen Abdulla v. Union of India (2020) – Case focusing on the rights of Muslim citizens in light of the CAA. Assam NRC Process and Outcome – Implementation details of the National Register of Citizens in Assam, reflecting challenges in identifying unauthorized immigrants and implications on state residents. Ministry of Home Affairs (MHA), Government of India – "Citizenship Amendment Rules, 2024," and documentation requirements outlined for CAA applicants.
National Population Register (NPR) – Historical context, linkage to Census data collection, and privacy concerns raised during its recent revisions. Human Rights Reports and International Observations – Critiques on the CAA’s alignment with international human rights standards and concerns of exclusionary practices against specific religious groups. Implementation Challenges of CAA 2019 – Addressing administrative, legal, and social challenges noted in the CAA's rollout, with emphasis on concerns for marginalized communities and logistical limitations
REFERENCES
https://docs.manupatra.in/newsline/articles/Upload/fbc144c2-b034-4af4-9b9e- 4f27b3352e1b.pdf https://www.drishtiias.com/state-pcs-current-affairs/government-starts-granting-citizenshipunder-caa https://economictimes.indiatimes.com https://www.mha.gov.in https://www.scconline.com/blog/post/2024/03/11/citizenship-amendment-rules-2024notified/