Citizenship of any person is decided on the basis of The Citizenship Rules, 2009. These rules are based on the Citizenship Act, 1955. These are five ways for any person to become a citizen of India: I. Citizenship by birth II. Citizenship by descent. III. Citizenship by registration IV. Citizenship by naturalization V. Citizenship by incorporation.[i]
The Citizenship Amendment Bill was passed smoothly in Lok Sabha by virtue of the brute majority of the ruling party. The process was a tad bit less smooth in the Rajya Sabha. After being passed in both Houses, almost immediately the bill received the Presidential sanction. And thus, the controversial Citizenship Amendment Act came into effect. It amended the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, who have lived in India without documentation. The time period for naturalization for these people has been shortened to not less than 5 years from the earlier requirement of not less than 11 years[ii].The whole time, the bill was vehemently objected to on two fronts- one in the North East and the other in the rest of the country for being anti-secular. The North East is protesting so as to keep out the outsiders from their state while the rest of the country is primarily protesting due to the bill being anti-Muslim. The government has responded to these protests- verbally and otherwise. The reactions and implications on both of these have been analyzed. The Supreme Court has been approached with regard to this act and some of the petitioners are Indian Union Muslim League and its four MPs, TMC MP Mahua Moitra, Congress MP Jairam Ramesh, Peace Party of India, Jan Adhikar Party, a former Indian Ambassador along with two retired IAS officers, All Assam Students Union, Assam Leader of Opposition Debabrata Saikia, Citizens Against Hate, Rihai Manch, Lok Sabha MP Asaduddin Owaisi, Kerala MLA T N Prathapan, “Makkal Needhi Maiam” of Kamal Hassan, United Against Hate, Tripura leader Pradyut Deb Barman, Assam Gana Parishad, Kerala Leader of Opposition Ramesh Chennithala, DYFI, DMK , civil rights activists Harsh Mander, Irfan Habib, Nikhil Dey & Prabhat Patnaik, Assam Jamait Ulema -E-Hind, Rajya Sabha MP Manoj Kumar Jha etc.
The case of North East–
In the North-East, it is primarily an issue of ethnicity. The people are very apprehensive and skeptical of outsiders flowing in large numbers and posing a risk to their traditional and cultural way of life. The migrants would also pose a burden on the limited resources besides disturbing the demography[iii]. Opposition against the bill is a consequence of the fear that the demography of Northeast India will change with the influx of migrants from Bangladesh. Despite the exclusion of tribal areas in Assam, Meghalaya, Mizoram, Tripura as included in the Sixth Schedule and the areas that fall within The Inner Line notified under the Bengal Eastern Frontier Regulation, 1873 , the Act has been met with massive protests nonetheless. It is an attempt to keep the outsiders away. As per the Assam Accord of 1985, all those who entered Assam from Bangladesh after 1971 would be treated as illegal immigrants.[iv]It does not discriminate between the illegal immigrants on religious grounds. The Assam Accord had been a result of incessant agitations in the state. Even the Instrument of Accession signed by states such as Tripura had similar clauses in order to keep outsiders away. Thus, the CAA is perceived as a betrayal by the Government of India.[v]The National Registry of Citizens was drawn up in Assam by the government in an attempt to weed out the said outsiders. 19 lakh people were excluded from the NRC list of which the majority happened to be Hindus. To have to strip away the citizenship of Hindus would have posed a challenged to the Hindu appeasement policy of the Bhartiya Janata Party. Now, as per the Amendment, all the Hindus excluded from the NRC are eligible to receive citizenship despite being illegal immigrants who entered after 1971. The Assamese people claim that the CAA would have the effect of diluting the Assam Accord. This is unacceptable to them. This triggered the protests in the North-Eastern states. Moreover, they claim that the entire North East should have been granted an exemption rather than only a few parts. They argue that the division made between the exempted areas and non-exempted areas would not really make a difference as there is still a likelihood of the non-Muslims outsiders to cross over in the absence of regulation over boundaries. They say that when international boundaries are penetrable, how the state can be expected to ensure that the exempted areas would not be porous. The heavily upset people in the North-East responded by organizing rallies, protests, returning awards and titles, defying curfew, getting detained and even laying down their lives.[vi]The ruling party responded to these protests by using conventional methods like imposing curfews to resorting to relatively newer methods like shutting the internet down. However, the people continue to relentlessly campaign.
Unsecular nature of the bill
The bill has met massive criticism for being unconstitutional. It is said that the Act has an anti-Muslim undertone. Those who oppose it say that the Act is an attempt to malign the social fabric of the nation. They claim that it is unconstitutional by pointing out that it is struck by Article 14 of Indian Constitution that all persons are equal before the law.[vii]Although, reasonable classification is permitted. But scholars claim that the Act fails the test for permissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.[viii]In Navtej Johar case[ix], Justice Indu Malhotra observed- “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia“. A yardstick based solely on the religion of an individual is based on an intrinsic and core trait of an individual. Thus, it cannot be deemed to be reasonable classification.Further, the ideal of secularism is enshrined in the preamble of the Constitution which also makes it a part of the basic structure doctrine according to which it is not amendable[x]. The exclusion of Muslims from the Act is completely unsecular.
Additionally, this law goes against the principles of International Law. Being a signatory to ICCPR, ICESCR, CEDAW and most significantly the Convention against Torture (CAT) 1984, India is under an obligation to provide asylum to a person who has any fear of persecution irrespective of religion of the person.[xi]
The Act is prima facie arbitrary in nature. Firstly, there is no explanation as to why the persecution of only selected religious communities are being catered to. In it, Muslims have been systematically excluded from the Act without being named. The Act conveniently overlooks the fact that peoples like Ahmediyyas and Shias in Pakistan, Hazaras in Afghanistan are severely persecuted. They are not even considered as Muslims in their respective countries and have been severely persecuted for decades now. Yet, the Home Minister, Amit Shah makes convenient remarks about it being impossible for Muslims to be persecuted in Islamic nations. Secondly, no reason has to be provided as to why the Act is limited to persecuted communities of only three countries- Pakistan, Afghanistan and Bangladesh. There are many neighbouring countries where certain groups of people are persecuted such as the Madhesis in Nepal, Rohingyas in Myanmar, Tibetans and Uighurs in China, Tamilians in Sri Lanka etc. But the Act does not include any of the aforementioned countries[xii]. Therefore, it is abundantly clear that the bill is only concerned with Pakistan, Afghanistan and Bangladesh due to their being Muslim majority nations. Thirdly, the government has given no explanation as to how the cut-off date i.e. 31 December 2014 was been arrived at. They gave no explanation for it as though the said minorities were not persecuted after 1947.
Scholars point out the catastrophic implications that the Act can have on the nation. Firstly, the cumulative effect of the nation-wide NRC announced by Amit Shah and the CAA will be to disenfranchise the Muslim voters while BJP would benefit from the surge in the Hindu votebank. This may go on to permanently scar the secular identity of the country. Secondly, during a time when the ruling party is facing severe backlash due to the failure of economic policies of the government, the Act has acted in a manner to distract the political discourse from rising inflation and falling GDP to the legitimacy of the Act. Thirdly, this Act seems to be inspired from the Divide-and-Rule policy of the state and a furtherance of the 2 nation theory formulated by M. A. Jinnah. The government appears to be buying into the narrative that India is a nation meant solely for Hindus.
Hopes remain pinned to the Supreme Court. The Chief Ministers of West Bengal, Punjab and Kerala have outrightly declared that they would not allow the problematic Act to take effect in their respective states.[xiii]However, citizenship is an item listed in the Union List given in the Seventh Schedule of the Constitution.[xiv]Article 256 requires states to implement and ensure compliance to the laws of the central government. So, at this point, it remains to be seen whether the claims of the three states are pragmatic. Protesters are being charged at by the police albeit certain states have still managed to hold peaceful rallies. The government has been exercising excessive authority to stifle the protests by imposing curfews, shutting down internet communication, barging into universities, charging at the protesters with lathis and tear gas[xv]. Hundreds have been detained and a few even killed. Both democratic and secular ideals are at stake today. Finally, only time shall tell whether the votebank of BJP will get enhanced but it is certain that the nation and its ideals have suffered a setback.
This post has been authored by Shrijaya Singh, a first-year student of law at the WB National University of Juridical Sciences, Kolkata.
[i]Citizenship Act, 1955.
[ii]Citizenship Amendment Act, 2019, 47 of 2019.
[iii]Madabhushi Acharyulu, De-Constituion of India Through Citizenship Amendment Act, December 13, 2019, available https://www.livelaw.in/columns/de-constitution-of-india-through-citizenship-amendment-act-150763.
[iv]Assam Accord, 1985.
[v]The Indian express, Protests Against CAA in Tripura,December 18, 2019, available https://indianexpress.com/article/north-east-india/tripura/protests-against-caa-in-tripura-picketers-burn-copies-of-act/
[vi]Mohammad Umar, Citizenship Amendment Act: An Unconstituional Assault on Cultiral Harmony,December 16, 2019, available https://www.livelaw.in/columns/citizenship-amendment-act-an-unconstitutional-assault-on-cultural-autonomy-of-north-east-150836
[vii]The Constitution of India, 1950, Article 14.
[viii]NIvedhitha K., The Citizenship Amendment Act is unconstitutional,December 05, 2019, available https://indconlawphil.wordpress.com/2019/12/05/guest-post-the-citizenship-amendment-bill-is-unconstitutional/?fbclid=IwAR2_xLNvzUMO_7wXk0qi8eHMvisT2vcWPH11Tqk_Mjftfu
[ix]Navtej Johar v Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016.
[x]Kesavananda Bharti v State of Kerala, AIR 1973 SC 1461.
[xi]Dr. Yogesh Pratap Singh, CAB: A Bill That Robs India’s Conscience And Secularity, December 10, 2019, available https://www.livelaw.in/columns/cab-a-bill-that-robs-indias-conscience-and-secularity-150654
[xii]Economic Times, Citizenship Amendment Act: What does it do and why is it seen as a problem?December 17, 2019, available //economictimes.indiatimes.com/articleshow/72436995.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[xiii]Apoorva Mandhani, Bengal, Punjab and Kerala refuse to roll out citizenship law. But can they?, December 13, 2019, available https://theprint.in/india/governance/judiciary/bengal-punjab-kerala-refuse-to-roll-out-citizenship-law-but-can-they/334775/
[xiv]The Constitution of India, 1950, Seventh Schedule.
[xv]Business Standard, Citizenship Act Protest Updates, December 20, 2019, available https://www.business-standard.com/article/current-affairs/citizenship-amendment-act-live-updates-delhi-nationwide-protests-section-144-in-karnataka-high-court-hearing-today-119121900152_1.html