The CAA (2019) Controversy- Decoded

The Citizenship Amendment Act (2019) explained

The Citizenship Amendment Act (2019) inserts the following provision in section 2, in sub-section (1), in clause (b) of the Citizenship Act 1955:

"Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;".

The amendment also lays down the regulation of the grant of citizenship to the persons who have been made immune from being illegal migrant for the purposes of this Act. Moreover, the Amendment explains that the amendment shall NOT apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under "The Inner Line" notified under the Bengal Eastern Frontier Regulation, 1873.

The act also shortens the eligibility period for the grant of citizenship from "not less than five years" in place of "not less than eleven years”.

The Controversy

The Citizenship Amendment Act of 2019 has come as one of the major regulatory amendment in the history of the constitution of India. The said amendment seems to prima facie be based on religious discrimination as it lays down provisions to grant citizenship of India to the persecuted minorities of Afghanistan, Pakistan, and Bangladesh which include Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians. The amendment does not explicitly mention the words persecuted or minority; these words have come into fashion through clarifications issued by the government from time to time. It has been argued by those against the amendment that the Citizenship Amendment Act (2019) discriminates against Muslims and even if based on the intelligible differentia of persecuted minorities, it fails to include the minorities such as Rohingya Muslims of Myanmar, Tamils of Sri Lanka, or Ahmadiya Muslims of Pakistan who have been persecuted in their respective countries for ages. Protesters have labelled the CAA as unconstitutional as it seems to violate the provisions of Article 14 of the constitution that guarantees equality before law to all the people irrespective of caste, creed, religion, gender, or place of birth. Article 14 is applicable to citizens as well as aliens. Certain sections of the society are also apprehensive of the fact that the CAA (2019) shall be followed by the National Register of Citizens (NRC) which shall eventually serve the purpose of altering the voters’ profile and majority sentiments in favor of the ruling party.

Roots of the controversy

The National Register of Citizens (NRC) is a legally supported procedure for determining who qualifies to be a citizen in the Indian state of Assam. The said exercise began in 2015 and the register was published in August 2019. It has been alleged that the NRC has left over 1 million people stateless – in stark contrast to the 1961 conventions. Though India is not a signatory to the said convention, it has been argued that the ethical responsibility of preventing statelessness rests with a nation. Further, it has also been asserted by those against the amendment that CAA (2019) has come as a tool for India’s central government– which is led by the right-wing Hindu Bharatiya Janata Party (BJP)- to accept as citizens those stateless people who are not Muslim and who fled to India from neighboring Bangladesh, Pakistan and Afghanistan (countries where the state religion is Islam). The government defends the law in the purview of creating an intelligible differentia on grounds of such people being persecuted on the basis of religion in the specified countries.

Allegedly, the law shall legalize over half a million Hindu Bangladeshis who had earlier been excluded in the NRC and rendered stateless as citizens on the grounds mentioned in the amendment act of 2019. In a similar manner, the illegal immigrants of other religious minorities shall gradually be legalized. This has been perceived as the government’s attempt to secure a large Hindu vote bank by granting citizenship to people who had been made stateless by implementing the NRC in Assam in the first place. Though not explicitly conveyed, the government plans to implement the procedure of NRC Pan-India and secure the position of minorities against specific religions. While the people belonging to specific religious minorities would not have to undergo the test of citizenship, the burden of proof implicitly rests on Muslims as per the Foreigners Act 1946.

Government’s Clarification

The Indian Government, through Press Information Bureau (PIB), has issued a clarification stating that No Indian citizen of any religion or any region will be adversely impacted by the Citizenship Amendment Act. In a myth-fact format, the government asserted that:

1. CAA does not affect any existing Indian citizenship of any religion. It is about giving citizenship to persecuted minorities settled in India till 2014 and not taking away citizenship from anyone

2. CAA applies only to minorities from three countries - Pakistan, Bangladesh and Afghanistan. It does not concern any Indian of any religion, including Muslims. So, there is no question of it being against Indian Muslims

3. No nationwide NRC has been announced. If and when it is announced, rules and guidelines would be framed such that no Indian citizen would face any harassment whatsoever

Opinion on Constitutional Validity

In order to examine the constitutional validity of the Citizenship Amendment Act (2019), we need to go back to the basics of Indian citizenship, limitations of the parliament in making constitutional amendments, as well as the limitations of the fundamental rights. With some precedents, it can be argued that The Citizenship Amendment Act (2019) is constitutionally valid and there remains a minimal scope for judicial intervention in this regard. The Hon’ble Supreme Court of India as held that the Parliament has ‘unrestricted power’ to refuse citizenship without assigning any reason whatsoever, as stated in Section 14(1) of the Citizenship Act, 1955 and that the illegal immigrants have no fundamental rights guaranteed for the grant of citizenship of India. This clarifies why CAA (2019) does not violate the provisions of Article 14 of the constitution. Moreover, it may also be argued that the constitution empowers the parliament to make regulations in the matters of policy and the scope for judicial review of such policies extends to only such circumstances wherein the basic structure of the constitution is attempted to be altered, which is clearly not evident in this case.

It may be contended that Jews have not been included for the purpose of the said act while they too are religiously persecuted. However, in NP Basheer vs State of Kerala, the Hon’ble court held that the intelligible differentia formulated by the legislature may not be scientifically perfect or logically complete. It was also held by the supreme court that mathematical nicety and perfect equality are not required. Over and under inclusion can be reasonably justified if the same is marginal. The number of Jews in Pakistan as per the National Database and Registration Authority of Pakistan is 745, whereas Zablon Simintov is the only Jew left in Afghanistan. The exclusion of Ahmadiyas and Rohingyas seem to dilute the constitutionality of this amendment, however, it may be argued that such religious sects are facing sectarian violence and religious persecution cannot be substituted with sectarian violence for the purpose of this Act. More importantly, sects such as Shias and Ahmadiyas have, in history, strongly condemned the idea of India. Though the descendants may have fundamentally different views on the subject, the same cannot be legally acclaimed. With the emerging spectrum of the concept of national security, the government is likely to be able to justify its position in this regard.

In this purview, notwithstanding the moral and ethical intentions behind, the Citizenship Amendment Act (2019), seemingly, cannot be struck down or fundamentally amended by the Hon’ble Supreme Court on the grounds of constitutional validity as it, in no way seems to take away the State’s obligation of equality to its people. Though the act seems discriminatory to a casual eye, the legal foundations of the same are strong enough to withstand a judicial review.