This article is written by Prithika Vajpeyi an intern under Legal Vidhiya
Abstract:
This article analyses if the Citizenship Amendment Act,2019 is constitutionally valid as many argue it goes against the secular spirit of the Constitution since it aims to fast-track granting of Indian citizenship to people who belong to minority communities in our neighbouring countries which excludes Muslims. It is also important to analyse the Act’s impact on the influx of migrants into the country and the availability of opportunities in terms of employment, education, access to resources etc. for the citizens.
Keywords: constitutionally valid, secular spirit, minority communities, impact
Introduction:
The Citizenship Amendment Act, 2019 states that Hindu, Sikh, Buddhist, Jain, Parsi, and Christian migrants from Pakistan, Afghanistan and Bangladesh where these communities are in minority and face religious persecution will be granted Indian citizenship if they entered India on or before December 31, 2014. Thus, as clause 6 of the said act states, instead of granting Indian citizenship after staying in India for not less than eleven years, migrants belonging to the said communities from the said countries would be granted citizenship for staying in India for not less than five years.
Those against the implementation of the Act argue that it violates secular provisions of the Constitution by excluding Muslims. The Act excludes from its ambit Muslims and fails to account for those belonging to the Shia and Ahmedia sects facing persecution in countries like Pakistan. One needs to understand the concept of minority religion concerning the demography of Pakistan. Ahmedias and Shias in Pakistan identify as Muslims and hence, there arises no question of religion-based violence against them. There can be sect-based violence against them, which is different from religious violence Thus, in a theocratic Islamic country like Pakistan, there arises no question of violence against certain sects within Islam based on religion. Another argument that one can advance in this respect is that Ahmadiyyas were at the forefront of the demand for the creation of Pakistan. Muhammad Zafrulla Khan, an Ahmadiyya, was a prominent campaigner for Pakistan.[1] Thus, if India was divided on the basis of religion back in 1947, the very religion that demanded the creation of a separate nation cannot claim to have preferential treatment in granting Indian citizenship.
One important aspect that needs to be looked at is the criteria to select countries from which migrants will be given citizenship. Pakistan and Bangladesh were part of undivided India and in these two countries, the population of non-Muslims in undivided Pakistan, before 1971, was 23% which fell to 3% in Pakistan and 20% in Bangladesh. This drastic decline in population can be attributed to mainly 3 factors- fleeing from these countries to other parts of the world, their killing or their conversion to the majority religion i.e. Islam. Afghanistan, on the other hand, ever since Talibanisation set foot in Afghanistan, the world has witnessed what can be called the worst form of oppression. India opened its door to those who were persecuted as the Taliban had no sympathy for non-believers. Thus, India owes a certain duty to the religious minorities in these countries as they had in the past a significant proportion of Indic religions.
Does the Act violate equality enshrined in Article 14?
It is argued that the CAA is fundamentally unjust in its treatment of persons depending on their religions. As a result, it fails to fulfil the Supreme Court’s definition of arbitrariness under Article 14 of the constitution, which ensures equal treatment before the law and security inside India’s borders. However, the idea of equality does not imply that every rule must have a universal application. The idea of equality does not deprive the state of the authority to make classifications. If a legislation applies equally to members of a designated class, it is not subject to the charge of denial of equal protection because it does not apply to other people.
“Religious classification is not inherently unlawful; in fact, our Constitution grants specific rights to members of India’s minority religious sects. We could do away with borders if the law was broader and permitted members of all religious communities from Pakistan, Bangladesh, and Afghanistan to migrate into India. Finding discrimination is an even more tenuous argument because the law does not apply to every citizen of every country (or certain nations) who has endured religious persecution. The bravest lawyers did not muster the confidence to offer such an argument – their disadvantage, of course, being that they were not TV anchors or enlightened members of civil society protesting on the streets”, says former Solicitor General of India, Harish Salve.[2]
Another fact that needs attention is that Article 14 comes under Part III of the Constitution and does not regulate the grant of citizenship. Rather, it is Part II i.e. Articles 5 to 11 that specifically deals with citizenship. The question of citizenship is not entirely addressed in the Constitution as Article 11 clearly states that citizenship will be regulated by any legislation that the Parliament passes. This effectively means that the Parliament has the power to legislate on this issue and the states have no option but to follow the law passed by the Parliament. Thus, the aspect of citizenship should be read under Articles 5 to 11 along with the Citizenship Act of 1955 and the Foreigners Act of 1946. The Citizenship Act is linked with the Citizenship Amendment Act, 2019 while the Foreigners Act is linked with the National Register of Citizens(NCR). The next argument that can be advanced is that since Article 11 empowers the Parliament to pass legislations on citizenship, the legislation will be valid if it does not violate the spirit of Articles 5 to 11. Since the Amendment Act does not grant citizenship solely on the basis of religion, nor does it deny citizenship to anyone on the basis of religion, it cannot be said to be constitutionally invalid.
Does the Act exclude certain communities?
The amendment act does not give a religious character to the Citizenship Act. It just adds a layer to the act which speeds up the process of grant of citizenship to certain persecuted religious minorities in some of India’s neighbouring countries. It does not take away any person’s citizenship on a religious basis. It just aids in granting the same to a group as a whole with no impact on the ability of individuals to acquire Indian citizenship. Thus, the Act is meant for inclusion and not exclusion. Thus, the argument that the Act excludes and discriminates against Indian Muslims and that they will be at a disadvantage if this Act were implemented is fundamentally flawed.
What is the implication of the CAA being combined with NRC?
The proposed statewide NRC, which is still only a proposal, will target illegal immigrants in India if it is enacted. However, Hindus, Christians, Sikhs, Buddhists, Jains, and Parsis from Afghanistan, Pakistan, and Bangladesh who claim to have come to India to escape religious persecution will not be affected. This essentially indicates that if a nationwide NRC is implemented as envisaged, any illegal immigrant from a country other than Pakistan, Afghanistan, and Bangladesh will be affected. Furthermore, many fear that Indian Muslims may be considered illegal immigrants if they are unable to provide appropriate proof of citizenship because they are not covered by the Citizenship Amendment Act.
As of prevailing, the administration has categorically denied using the CAA to update the NRC. Union Home Minister Amit Shah stated that the National Register of Citizens (NRC) process in Assam was not focused on religion. When asked about his declaration that the government would apply the NRC across the country, the home minister stated “bona fide Indian citizens” should not be concerned.
The linking of the NRC and the CAA,2019 to argue that people belonging to the 6 communities the Act mentions will be given priority over Muslims if both stand excluded as a result of the implementation of a nationwide NRC is troublesome. The CAA grants citizenship to persons belonging to communities in minority in Pakistan, Bangladesh and Afghanistan who came to India on or before December 31, 2014. Thus, the Act is not wide enough to include in its ambit all persons belonging to these communities, irrespective of where they come from and the date on which they started residing in India.
What are the implications of the Act?
Many fear that the CAA will result in an influx of illegal migrants into India. This argument has no basis as the CAA only fast-tracks the grant of citizenship to 6 communities that are in minority and face religious persecution n Pakistan, Afghanistan and Bangladesh who have begun residing in India on or before December 31, 2014. The Act does not have the authority to grant citizenship to all persons belonging to these 6 communities, nor does it encourage migration into India in any way.
The return of the Taliban in Afghanistan and the atrocities on non-believers that followed point to the necessity of the CAA. The population of non-Muslims in Pakistan is on the decline as stated by a former advisor to a Pakistan Prime Minister in her book Purifying the Land of the Pure: Pakistan’s Religious Minorities, Farahnaz Ispahani dwindled to a meagre three per cent now from 23 per cent during the Partition of united India.[3] There is evidence of a decline in the population of religious minorities in Bangladesh, for instance, the proportion of Hindus in the population declined from 22% to 8.5% from 1951 to 2011. [4]Communal violence is still prevalent. Many of these attacks are conducted at the local level by people or groups rather than militants and are typically motivated by personal disagreements, land grabbing, and the apparent impunity that characterises many of them.[5]
Thus, the Citizenship Amendment Act, 2019 aims to fast track granting of citizenship to 6 communities from Pakistan, Afghanistan and Bangladesh as they face religious persecution in these countries. This Act will provide relief to these communities.
Petitions:
Petitioners challenging the law include Trinamool Congress MP Mahua Moitra, Congress leader and former Union minister Jairam Ramesh, All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi, Congress leader Debabrata Saikia, NGOs Rihai Manch and Citizens Against Hate, advocate M.L. Sharma, and law students, among others. The Supreme Court, however, in its hearing on December, 6 decided to treat the petition filed by the Indian Union Muslim League as the lead matter. Kerala filed a lawsuit under Article 131 of the Constitution, becoming the first state to challenge the CAA. Article 131 gives the Supreme Court the authority to hear disputes between the government of India and one or more states. The amendment was challenged on grounds of being violative of Articles 14, 15, 19 and 21.
The government stated that the amendment does not affect the existing rights of Indian citizens and that the amendment was a limited legislative measure. It was further contended that the issues arising out of the amendment do not fall within the scope of judicial review.[6] The court is yet to deliver a final judgement on the constitutional validity of the Act.
Conclusion:
Thus, it is important to address the apprehensions in the minds of the general public and inform them about the real intent behind the Act.
[1] https://www.opindia.com/2019/12/how-ahmadiyyas-were-at-the-forefront-of-creation-of-pakistan-islam-all-you-need-to-know/ visited on 17/04/23
[2] https://timesofindia.indiatimes.com/blogs/toi-edit-page/caa-is-necessary-why-the-many-arguments-about-its-being-unconstitutional-dont-hold-water/ visited on 17/04/23
[3] https://www.indiablooms.com/world-details/SA/25212/pakistan-s-23-non-muslim-population-during-partition-is-now-3-ex-advisor-to-pak-prime-minister.html visited on 17/04/23
[4] Report on The Challenges facing Religious Minorities in Bangladesh, Minority Rights Group International, 7, available at https://minorityrights.org/wp-content/uploads/2016/11/MRG_Rep_Ban_Oct16_ONLINE.pdf, last seen on 18/04/23
[5] Report on The Challenges facing Religious Minorities in Bangladesh, Minority Rights Group International, 17, available at https://minorityrights.org/wp-content/uploads/2016/11/MRG_Rep_Ban_Oct16_ONLINE.pdf, last seen on 18/04/23
[6] https://www.livelaw.in/top-stories/supreme-court-adjourns-hearing-of-petitions-challenging-citizenship-amendment-act-to-december-6-212820 visited on 28/04/23
