Citizenship (Amendment) Act (CAA), 2019

• The subject "citizenship" comes under the part-2 of the Indian Constitution.
• The part-2 of Indian Constitution extends between article 5 to 11.
• Indian Constitution gives single citizenship while America gives double citizenship to their countrymen.
• Citizenship shows the relationship between individual and state and Article- 11 empowers Parliament to make any provision for the acquisition and termination of citizenship.
• Citizenship is inserted in the Union List under the Constitution and therefore it is under the control of Parliament.
• As Citizenship is on the Union List of the Seventh Schedule of the Constitution, it doesn’t need any federal structure or states’ approval at all.

Key Features of the CAA, 2019

• Eligibility:
• It amended the Citizenship Act of 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for Indian citizenship.
• Who are illegal migrants?: An illegal immigrant enters India without valid travel documents or stays beyond the permitted time, potentially facing prosecution, deportation, or imprisonment.
• Those from these communities who entered India on or before December 31, 2014, would not be treated as illegal immigrants, providing a path to naturalisation.
• However, it exempts the Muslim community.
• Relaxation:
• The amendment relaxed the residency requirement from 11 years to 6 years for these communities to acquire Indian citizenship by naturalization.
• It exempts members of these communities from prosecution under the Foreigners Act of 1946 and the Passport Act of 1920.
• Applicants are exempt from being considered "illegal immigrants".
• Exception:
• The amendments for illegal migrants will not apply to certain tribal (under Sixth Schedule) areas in Assam, Meghalaya, Mizoram, and Tripura, as well as states regulated by the "Inner Line" permit under the Bengal Eastern Frontier Regulations 1873.
• Consequences of acquiring citizenship: It states that acquiring citizenship will result in (i) such persons being deemed to be citizens of India from the date of their entry into India, and (ii) all legal proceedings against them in respect of their illegal migration or citizenship being closed.
• Grounds for cancelling OCI registration:
• The 1955 Act allows the central government to cancel OCI registrations on various grounds, with the amendment adding a new ground for cancellation if the OCI violates a government-notified law.

Arguments in Support of CAA

Cross-border migration between India, Pakistan, Afghanistan, and Bangladesh has been a longstanding issue, especially for minorities. Before India's partition in 1947, millions from undivided India, representing various religious communities, resided in Pakistan and Bangladesh.

• However, the constitutions of these countries, with state religions, led to persecution and fear among minorities. Consequently, many sought refuge in India, even with expired or incomplete travel documents.
• The failure of the Nehru-Liaquat pact, aimed at protecting minorities' rights post-partition, paved the way for the Citizenship Amendment Act, which grants citizenship to persecuted religious minorities from these countries, addressing their plight.
• Humanitarian grounds: The CAA provides a life of dignity and rights to religious minorities facing persecution on grounds of their faith in the theocratic neighbouring states.
• Civilizational ethos: India has been a natural home for persecuted minorities, and the CAA is in line with the nation's civilizational ethos.
• Reasonable classification: It differentiates based on religion, but only to accommodate persecuted religious minorities, which is a reasonable restriction under Article 14.
• National interest: It will deter illegal immigration into India in the future from these specific communities. It will also act as a bulwark against infiltration from designated Muslim-majority nations.

Criticism on CAA, 2019

Critics argue that the law is discriminatory and conflicts with the secular values given in the preamble. They assert that citizenship shouldn't depend on faith, as it opposes the core principles of equality and non-discrimination in the Constitution. These principles ensure equal treatment under the law regardless of religious beliefs. Consequently, the CAA 2019 has faced criticism on multiple fronts:

• Exclusionary nature: The Act selectively includes six persecuted religious minorities from specific countries, causing arbitrary and unfair inclusion of Ahmadiyyas and Hazaras in Pakistan and Afghanistan, Rohingyas in Myanmar, and Tamils in Sri Lanka.
• Violation of Article 14: By differentiating on religious grounds for citizenship, the law violates the fundamental right to equality and constitutes anti-secular state action.
• Date of entry criteria: The differentiation between migrants who entered India before or after December 31, 2014, lacks rationale.
• Excessive discretion to government: The Act grants wide discretionary powers to the central government regarding the cancellation of OCI registration.

CAA Rules, 2024

Though with more than a 4-year delay, The Ministry of Home Affairs has notified the Citizenship Amendment Rules, 2024 that would enable the implementation of the Citizenship Amendment Act 2019. Key provisions are:

• The process: The rules require eligible refugees to submit applications with affidavits confirming statements, character vouchers from Indian citizens, and a declaration of familiarity with a scheduled Indian language for citizenship.
• E-application to the district-level committee: The rules mandate electronic application submission to a district-level committee for document verification and administration of the oath of allegiance. Failure to appear in person may lead to application rejection by the empowered committee after review by the district committee.
• Supporting documents: Applicants must submit a passport, birth certificate, identity documents, land records, or proof of ancestry from Pakistan, Afghanistan, or Bangladesh to support their citizenship application.
• Verification of entry date: Applicants must provide proof of entry before Dec 31, 2014, through the listed 20 documents like FRRO registration, Census slip, government IDs (Aadhaar, ration card, license), marriage certificate issued in India etc.
• Digital certificate: Approved applicants will receive a digital citizenship certificate.

Impact of CAA, 2019

The CAA of 2019 has triggered various impacts and implications, sparking debates and concerns across India.

• Social polarisation: It has ignited debates on religious lines due to its exclusionary nature, raising concerns about communal tensions and divisions within the social fabric of the country.
• Global censure: Major global bodies and democracies have criticized the law as violating international conventions on human rights and statelessness.It also generated diplomatic reactions from neighbouring countries like Bangladesh and Pakistan.
• Violent protests: The enactment of CAA resulted in widespread protests across the country. Largely peaceful protests against the CAA turned violent in areas of Delhi, resulting in casualties.
• CAA Vs Assam Accord: The CAA's provisions granting citizenship to persecuted minorities have sparked fears of violating the Assam Accord 1985, which aimed to detect and deport illegal immigrants in Assam after March 25, 1971.
• Risk of discrimination: Many poor Indian citizens, unlike many developed nations, do not have citizenship papers or residency proof. CAA coupled with NRC result in the poorest Indians losing or gaining temporary citizenships until they obtain the necessary documents.
• The National Register of Citizens (NRC) comprises individuals who can substantiate their arrival in the state before March 24, 1971, the day preceding Bangladesh's declaration of independence.
• Disadvantage to native citizens: The CAA granting citizenship to illegal migrants raises concerns among native citizens about potential demographic shifts impacting their employment and land ownership dynamics.
• Federalism and State Responses: The sharp opposition to CAA from multiple states further escalated the law into a major federalism issue amidst accusations of violating the constitutional scheme of power sharing.
• For instance, West Bengal, and Tamil Nadu issued statements declining any implementation of the CAA within their jurisdictions on constitutional grounds.

However, the Supreme Court is considering petitions challenging the constitutionality of the CAA, citing concerns over religious discrimination and immigration implementation challenges, with the main argument being that using religion as a criterion violates Article 14 of the Indian Constitution.

Constitutionality Check

• The challenge may rest primarily on the grounds that the law violates Article 14 of the Constitution that guarantees that no person shall be denied the right to equality before law or the equal protection of law in the territory of India.
• The Supreme Court has developed a Two-Pronged Test to examine a law on the grounds of Article 14.
  • First, any differentiation between groups of persons must be founded on “intelligible differentia”
  • Second, differentia must have a rational nexus to the object sought to be achieved by the Act
• Simply put, for a law to satisfy the conditions under Article 14, it has to first create a “reasonable class” of subjects that it seeks to govern under the law.
• Even if the classification is reasonable, any person who falls in that category has to be treated alike.

Impact on Assam and Assam Accord

• Intersection with Section 6A: The CAA intersects with Section 6A of The Citizenship Act, 1955, which determines citizenship criteria in Assam.
• Assam Accord: Section 6A, linked to the Assam Accord, sets criteria for determining citizenship in Assam, posing potential conflicts with the CAA’s provisions.
• Base Cut-off Date and Regularization: The Assam Accord establishes a base cut-off date for identifying and regularizing foreigners in Assam, impacting the implementation of the CAA in the state.

Way forward

India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians. Now, when the government has notified the rules and with challenge to the constitutionality of CAA pending in the SC, the following should be the way ahead:

• Allay the fears of Muslim Community-The government must allay the fears of a nationwide NRCamong the Muslim community, which they feel can deprive them of their citizenship rights in case of failure to provide the requisite documents.
• SC Verdict on Constitutionality of the Act-The SC must provide its verdict on the petitions challenging the Act as done in the recent contentious cases of Electoral Bondsand Art 370.
• Assurance to international community and neighbouring countries-Government should assure its neighbours about the effective implementation and no discrimination against Muslims regarding CAA provisions.
• Inclusion of other persecuted minorities-Other persecuted minorities like Tamil Hindus in Sri Lanka, the Rohingya in Myanmar, or minority Muslim sects like Ahmadiyyas and Hazaras in Pakistan, Afghanistan should be gradually included in the Act.
• Federal Cooperation-The central government must assuage the fears of the North-eastern states like Assamregarding the impact of CAA on their cultural and ethnic identity.