The Constitution of India, in its entirety, grants a majority of its rights to the Citizens of India, and in a few scenarios, to people from foreign lands as well. While granting these rights, it also instills in people a feeling of security by the portrayal of India as a secular nation. A nation that is for all religions, and one that allows its citizens to practice any religion. Recently, there has been turmoil around the discussion of who can now become a citizen and what the process entails. There are three laws that decide whether an individual can be considered a citizen of India. These are the Citizenship Act of 1955, the Foreigners Act of 1946, and the Passport Act of 1920.[1] This article will focus on the first of the three laws, the Citizenship Act, and shed light on how changes in it have affected the country and what the amendment entails. The power to amend the laws related to citizenship under this act is given to the Parliament by Article 11 of the Constitution.[2] The Act of 1955 provides for gaining citizenship through five means: birth, acquisition, registration, descent, and naturalization.[3]
The Amendment Bill had initially been drafted by the Modi government in 2016 but was passed by both the houses in the December of 2019.[4] The bill which started as an Act in the winter session of the Parliament provides a path to Hindus, Sikhs, Buddhists, Christians, Jains, and Parsi’s from Bangladesh, Afghanistan, and Pakistan to become citizens of India.[5] The act seeks to grant citizenship to people who fall into the above categories and had arrived in India before 31st December 2014.[6] Additionally, the amendment allows these people to become citizens of the country even without the required documents and reduces the normal time duration for citizenship, which is 11 years, to 5.[7] On paper, this act seems quite simple, and all the more helpful to illegal immigrants, by providing them with a chance to become citizens of India and lead a normal life. However, many have questioned the hidden agenda of the government for passing this act.
When this act is studied in relation to several other acts passed by the government, the potential hidden agendas come to light. It is no secret that Afghanistan, Pakistan, and Bangladesh are India’s neighbors with the largest Muslim population. Contrary to what was expected, the act extended its ambit to almost all the other religious communities that live in the three nations, except Muslims. Thus, the CAA has the potential to deprive a large number of Muslims, as well as Non-Muslims of full citizenship.[8] However, the difference is that the Non-Muslims have a chance to gain their citizenship through the provisions of the act whereas no such opportunity is given to Muslims.[9] Thus, the CAA by itself has proved to be problematic for the people residing in the country. Furthermore, it can be a greater threat when combined with some of the other steps taken by the government such as NRC, which will be addressed later on in this article. There are a few other decisions by the government, relatively unknown that have in a way paved for the CAA to take place. A brief description of these decisions is as follows:
- Chakma-Hajong Decision: In September 2017, the Union Home Minister approved a proposal to grant citizenship to the Chakma and Hajong refugees in Arunachal Pradesh, who were originally inhabitants of East Pakistan, now Bangladesh.[10] Chakmas are mainly Buddhists, and Hajongs, Hindus, their arrival caused uproar in the north east with local groups resisting the presence of outsiders.[11] When NEFA was converted into Arunachal Pradesh, it was agreed that the two communities will be given citizenship, the Supreme Court directed the centre to do the same in 2015 through an order, which was then implemented in 2017.[12]
- RBI’s grant of property rights: In March 2018, illegal immigrants, excluding Muslims, from the three nations of Afghanistan, Pakistan, and Bangladesh were granted the right to own property in India for residential or business purposes.[13] The notification by RBI allows people from the minority communities of Hindus, Parsi’s, Jains, Buddhists, and Christians belonging to the aforementioned three nations, who have been granted a long-term visa by the central government to purchase one immovable residential property and one for carrying out self-employment.[14]
- Visa overstay concessions for non-Muslims: An announcement by the external affairs ministry resulted in a difference in the fine amount which was to be paid by Muslim immigrants and non-Muslim immigrants.[15] In case of a 90-day overstay, the non-Muslims had to pay a fine of Rs 100 whereas the Muslim immigrants had to pay a regular fine of $300.[16] This amount gradually increased for a greater time of overstay, but to Rs.200 and 500 for non-Muslims, and $400 and $500 for Muslims with an overstay of 91 days- 2 years and an overstay exceeding 2 years respectively.[17]
Thus, these three policy decisions illustrate how the inclusion of Muslim immigrants from the three countries was not on the government’s agenda.[18]
Addressing the issue of the NRC and CAA together, it is seen that the CAA provides for a partial treatment of people excluded by the NRC process, by making a provision to grant citizenship only to Hindus that are left out of the NRC.[19] It has further led people to believe that the Modi government is strengthening their Hindutva ideology and the idea of a Hindu nation.[20] The CAA has resulted in an uproar in the northeast region as well. The Act does not apply to the tribal areas of Tripura, Mizoram, Assam, and Meghalaya as they fall under the sixth schedule of the Constitution.[21] The areas of Arunachal Pradesh, Mizoram, and Nagaland also don’t fall under the purview of this act due to the Bengal Eastern Frontier Regulation Act as they fall under the inner limit.[22] A large number of the people in the northeast also felt that the Bill, by granting citizenship to ordinary refugees will undermine the ethnic communities that live within this region and dilute their culture.[23] The potential of NRC and CAA combined caused a major uproar in Assam in particular. Putting NRC aside, there are several other reasons for the discontent that has spread because of the CAA in particular.
The obvious reason for the discontent is the exclusion of Muslims from the ambit of the Act, which has also perhaps reduced the feeling of secularism in the nation. Also, some were of the opinion that due to the extensive documentation work that has to be performed under the Act, there could be an adverse effect on the economic situation of the country.[24] Coming back to the issue of secularism, multiple questions were raised. Firstly, the fact that only three countries have been mentioned in the act has been questioned, especially due to the reason of religious persecution.[25] Furthermore, the idea that religious persecution could occur against Muslims in these three nations has also been ignored.[26] It must also be kept in mind that if the secular structure of the nation is disturbed, then it could lead to an adverse effect on the entire Indian Constitution as well.[27]
The discontent against this act eventually led to petitions being filed against it. In these petitions, some people also contended that the act was violative of the fundamental rights to equality and dignity of illegal immigrants under Articles 14 and 21 of the Indian Constitution.[28] It is said that Article 14 exercises its powers over “all persons” and not just the citizens of India.[29] The fundamental right has already established that there cannot be any classification of people on an unreasonable basis. If the same is done, it shall be considered arbitrary and discriminative. The Court developed the two-part reasonable classification test for assessing whether a law or Act unconstitutionally differentiates between persons, in this, any differentiation between groups of persons must be founded on ‘intelligible differentia’ and the differentia must have a rational relation to the main aim of the act.[30]
The petitioners claim that the CAA fails the reasonable classification test and thus violates Article 14 of the Constitution.[31] This is perhaps understandable as there is no reasonable basis for excluding Muslims from this act. The main of the CAA is to protect those who may face religious persecution and accommodate them, it has been claimed that religion or the country of origin has no rational relation with this aim.[32] Also, secularism is one of the most salient features of the Indian Constitution, its place in the Preamble is irreplaceable to a large extent. This particular feature gives all the people who are living in India, a sense of security and a belief that no matter what their religion might be, the constitution of the country will welcome them and not let religion be a ground for discrimination to take place. The mere idea that people from all religious backgrounds might not be welcomed, and that steps are being taken to exclude them completely, is bound to create a chaotic situation in the country, filled with insecurity and confusion.
To all these reasons for the uproar, the government has given a fair share of reasons for going ahead with this amendment. Firstly, it allows for a survey to be carried out which will, in turn, give information about the illegal immigrants who are residing in India.[33] Apart from being beneficial for security purposes, it also provides a way for these illegal immigrants to become legal citizens of India and takes care of the documentation process on record.[34] There will also be proper resource management, and with adequate resource utilisation, there will be sustainability and better planning.[35] While this reason might not have a direct correlation, it is right to a large extent.
If the government has a clearer picture of the number of people who will actually be needing the resources, they can plan distribution in a better way. In contrast, if the government isn’t aware of how many people are residing due to lack of documentation, it can result in a fight for resources and then scarcity. To all the protests regarding the validity of this Act with relation to Article 14, the government has stated that it is not violative of the right to equality.[36] The act still provides every foreigner of any religion with a chance to gain citizenship by registration or naturalisation, it has not hampered with this provision on the basis of religion.[37] Furthermore, to the questions raised about the two-fold classification test, the government has said that the act has been amended keeping religious persecution in mind, and not religion.[38] Since religious persecution is deemed to be a valid ground for classification, the act seems to pass the aforementioned two-fold test as well.
The Act is also not violative of the constitution as it simply amends the provisions of the previous Citizenship Act, 1955.[39] The Act only aims to provide a home to those groups who may face religious persecution in the three countries, and the amendment doesn’t affect any rights of those who are already Indian citizens.[40] However, many believe that this aim of the government isn’t consistent with the provisions of the bill. There are many other religious groups in the three countries of Pakistan, Afghanistan, and Bangladesh that may face persecution, hence the Act covers neither all religious minorities nor all the neighbouring countries.[41] .
The Ahmedia Muslim sect and even the Shia sect of Muslims face discrimination in Pakistan, Rohingya Muslims and Hindus face persecution in the neighbouring nation of Burma, and Hindu and Christian Tamils in the neighbouring country of Sri Lanka.[42] Why has the government not made provisions for the same in the amended act? The government responds that Muslims can seek refuge in Islamic nations, but has not answered the other questions, and moreover, doesn’t give a reason for why Muslims cant seek homage in India if many other religions can.[43]
The laws and Acts which are passed can’t all be black or white, there is bound to be a grey area in many of the actions which are taken by the government. However, the government can’t and shouldn’t be allowed to avoid the factor of accountability. The government has many valid reasons for introducing the amended act and hoping to implement it, however, they have to address the turmoil which their actions create and be answerable to the questions raised.
That being said, one cannot be questioned for doubting the governments intentions and being suspicious about the activities that have been taking place. Taking the instances of the three other acts mentioned at the start of this article itself, the public can’t be blamed for thinking that there is a certain agenda against Muslims in all these acts. It can’t be a mere coincidence that it is only Muslims who are time and again excluded from the provisions the government makes. To draw an analogy, one can imagine the discontent and tension that would arise if any of India’s neighbouring countries, Bhutan or Nepal for instance, were to come up with policies for foreigners and just happened to exclude Hindus from India but include other religions from India as a part of the people who could exercise the provisions of said policies.
The aim of this article is not to criticise the actions of the government and incite discontent. As has been several times in the article, the government is valid and right in many of its reasons and actions. However, they need to take into account the way the public has been reacting to it and answer their questions. The entire aim of the government to provide legal documentation and access to citizenship to illegal immigrants is a commendable effort and should be appreciated. It is helpful to both the government and especially the people who can finally claim themselves to be citizens of India and live without fear, with a feeling of being accepted and welcomed.
That being said, for the government to exclude an entire religious group from the provisions of this act is bound to create a great deal of confusion and questioning. The act fails to take into account a very possible scenario, what if a Muslim had fled any of the three nations mentioned in the act due to the discrimination they were facing and took refuge in India, but now due to the act cannot stay in India is well, where are they expected to go? It is true that they will perhaps be welcomed in other Islamic nations, but where are the provisions for them to exercise this possibility?
They might just wind up as illegal immigrants in those nations as well. Thus, to reduce the turmoil around this act, the government can perhaps come up with a few provisions that allow the other religious minorities to seek refuge in other nations of the world. They can also be encouraged to seek citizenship in India through the means of naturalisation or registration, as these rights are still exercisable and available to foreigners. Moreover, the process of these surveys should also be a transparent one to foster a sense of trust and security in the government, which will also encourage the citizens to support any other steps they might take.
[1] Prabhash K Dutta, CAA, NPR and NRC: Confusion and connection explained, India Today (2019), https://www.indiatoday.in/news-analysis/story/caa-npr-nrc-confusion-connection-explained-india-1631534-2019-12-26 (last visited Jun 23, 2021).
[2] CITIZENSHIP AMENDMENT ACT, 2019 EXPLAINED WITH PROS AND CONS, Writing Law (2019), https://www.writinglaw.com/citizenship-amendment-act-2019-explained/ (last visited Jun 23, 2021).
[3] Id.
[4] Prabhash K Dutta, Before CAA came in, 3 decisions had set the background, India Today (2019), https://www.indiatoday.in/india/story/before-citizenship-act-came-in-3-decisions-had-set-the-background-1632742-2019-12-31 (last visited Jun 23, 2021).
[5]Citizenship Amendment Act 2019: All you need to know, Live Mint (2019), https://www.livemint.com/news/india/citizenship-amendment-act-2019-all-you-need-to-know-11576401546515.html (last visited Jun 23, 2021).
[6] Id.
[7] Supra note 5.
[8] Citizenship Amendment Act, Supreme Court Observer, https://www.scobserver.in/court-case/caa (last visited Jun 23, 2021).
[9] Id.
[10] Supra note 4.
[11] Supra note 4.
[12] Supra note 4.
[13] Supra note 4.
[14] Supra note 4.
[15] Supra note 4.
[16] Supra note 4.
[17] Supra note 4.
[18] Supra note 4.
[19]Suraj Gogoi, The Indian State’s approach to CAA-NRC is flawed, Hindustan Times (2021), https://www.hindustantimes.com/analysis/the-indian-state-s-approach-to-caa-nrc-is-flawed/story-pecdA3jOc55METIqQdKrJN.html (last visited Jun 23, 2021).
[20] Id.
[21] Supra note 5.
[22] Supra note 5.
[23]Why the northeast is up in arms against the Citizenship Bill, Times of India (2019), https://timesofindia.indiatimes.com/india/why-the-northeast-is-up-in-arms-against-the-citizenship-bill/articleshow/72493047.cms (last visited Jun 23, 2021).
[24] Supra note 2.
[25] Supra note 2.
[26] Supra note 2.
[27] Supra note 2.
[28] Supra note 8.
[29] Supra note 8.
[30] Supra note 8.
[31] Supra note 8.
[32] Supra note 8.
[33] Supra note 2.
[34] Supra note 2.
[35] Supra note 2.
[36] Supra note 2.
[37] Supra note 2.
[38] Supra note 2.
[39] Supra note 2.
[40] Supra note 2.
[41]Citizenship (Amendment) Act 2019: What is it and why is it seen as a problem, The Economic Times (2019),https://economictimes.indiatimes.com/news/et-explains/citizenship-amendment-bill-what-does-it-do-and-why-is-it-seen-as-a-problem/articleshow/72436995.cms (last visited Jun 23, 2021).
[42] Id.
[43] Supra note 41.
Author: Isha Khurana from JGLS, Sonipat.
Juris Centre 