Constitutional Analysis of the Citizenship Amendment Act, 2019

Authored by Vidit Raj Jain, pursuing B.A., LL.B. (Hons.) at Hidayatullah Nationwide Regulation College, Raipur

It’s a well-established precept that India, as a Sovereign State, has the authority to determine who’s granted citizenship. Nevertheless, conserving in thoughts the Constitutional Democratic character, such choices must be checked in opposition to the mandates of the Structure. In gentle of this, the constitutional validity of the Citizenship Modification Act, 2019 (‘CAA’) wants a verify particularly on the strains of equality as supplied beneath Article 14 of the Structure of India (‘COI’). The CAA grants citizenship to non-Muslim migrants from Afghanistan, Pakistan, and Bangladesh, whereas excluding Muslims. This creates a possible distinction based mostly on faith, which can be thought-about discriminatory beneath the constitutional framework.

The CAA was debated and protested within the political local weather throughout its preliminary interval. Claims of non secular prejudice arose from the modification to the Citizenship Act 1955 that supplied for the minorities of Afghanistan, Pakistan, and Bangladesh belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian religions can get Indian citizenship if the particular person entered India earlier than December 31, 2014. But Muslims had been denied this proper. Protests started on the grounds that they violated the ideas of the COI and particularly Article 14, which was supposed to undermine the secular material of India; the federal government argued that the Act was an try and redress the catastrophic historic abuses suffered by persecuted minorities. Panic arose due to the probability that some oppressed folks could be rendered stateless notably due to being Muslim. Whereas the Sixth Schedule areas and people beneath the Inside Line Allow (ILP) had been exempted, protests in Northeast India had been concerning the assertion of indigenous identification in opposition to the alleged violation of the Assam Accord of 1985. Whereas the women-led sit-in at Shaheen Bagh in Delhi turned an icon of non-violent protest, unprecedented demonstrations everywhere in the nation, led by college students, civil society and political organisations turned universities like Jamia Millia Islamia, and Aligarh Muslim College into protest zones. In Assam, violent conflicts claimed lives whereas agitations raised the problems of decay of the tradition. Fears of authoritarianism had been raised when brutal police pressure throughout protests just like the one at Jamia was expressed extra vociferously. The Act was one of the vital controversial acts which put extra stress on broader problems with citizenship, secularism and sustainability of democracy in India. Home critics and international anti-India lobbies criticized the Act for distorting India’s democratic and culturally various stands.

The CAA and the Nationwide Register of Residents (‘NRC’) ought to be learn collectively, which helps in understanding the very essence of each. The House Minister of India, Amit Shah has additionally been very clear of 1 gaining which means within the firm of the opposite. Assam has been chosen because the laboratory to hold on this experiment. By means of the method of NRC, the unlawful migrants residing in Assam are sought to be excluded from citizenship. Nevertheless, the non-Muslims can earn their citizenship by way of the CAA, whereas, the Muslims, who will likely be excluded from the NRC is not going to have some other method of gaining the citizenship.

CAA additionally violates the Assam Accord, in line with which twenty fourth March 1971, was mounted because the deadline for the immigrants. The CAA extends this deadline and strikes the date to thirty first December, 2014 for the immigrants of the 6 accepted religions from the three talked about nations.

A element of arbitrariness is seen as the entire burden of taking in unlawful immigrants has been placed on Assam. The burden ought to be imposed on the entire Union collectively, or even when border states are to be thought-about because the class, then each border state ought to be included in NRC. Being singled out has precipitated plenty of issues for the native Assamese, comparable to a change within the demographics of the state, lowering the native Assamese to a minority and hampering their cultural rights, discount within the per-head assets accessible, and so on.

Any act, the thing of which is discriminatory, can not fulfil the take a look at of affordable classification beneath Article 14 of the COI, as was held in Nagpur Enchancment Belief v. Vithal Rao. As Assam has been discriminated in opposition to, from the angle of NRC, Article 14 of the COI stands breached. Different border and even non-border states like Tripura, Meghalaya, Rajasthan, and so on. additionally face the unlawful immigrants problem however they haven’t been included within the NRC. Article 21 of the COI, which offers for the safety of neighborhood rights, and the fitting to self-governance, amongst different issues, has additionally been breached. Article 29(1) of the COI offers for the conservation of distinct languages, cultures, and so on. The CAA immediately goes in opposition to this provision. Article 355 of the COI casts an obligation on the Union to guard states in opposition to inner disturbances, fairly opposite to which, the CAA has the potential to advertise exterior aggression within the state of Assam.

There could be critical social, authorized, political and financial penalties if the NRC is prolonged all through the nation. It could additionally trigger injustice to the poor, the landless, indigenous individuals who don’t possess the required paperwork. This may occasionally improve tensions within the society resulting from mass marginalisation and statelessness. It isn’t unusual to grasp that such a process would imply an enormous administrative burden that will probably overload the system, thereby resulting in additional authorized problems.  Additionally, the exclusions would possibly result in lack of livelihood, particularly within the casual sector, and implementation of the NRC is likely to be costly to fund utilizing restricted public assets. Within the worldwide enviornment, the method can carry a unfavorable picture to India and may pressure relations with Bangladesh and different neighbouring nations.

The forty second Constitutional (Modification) Act of 1976 defines ‘secular’ as treating all of the religions within the republic equally. Nevertheless, the Honourable Supreme Courtroom has interpreted the legislation on many events in its judgements. Concerning secularism, we discover that the Indian Structure maintains a secular system and doesn’t imply atheism.

Initially, secularism was understood to imply that the state ought to deal with all religions equally and chorus from interfering of their practices. The courts targeting hanging a steadiness between primary rights and private laws.

It was then firmly established as a basic element of the Structure. It was anticipated that the state would actively contribute to sustaining equality and avoiding prejudice in opposition to sure communities.

At the moment, the emphasis is on hanging a steadiness between secularism, particular person liberties, and modern beliefs like gender equality. The intersection of social justice and secular values has been a subject, getting elevated consideration from the judiciary.

The validity of the Bombay Prevention of Hindu Bigamous Marriages Act,1946 was affirmed in State of Bombay v. Narasu Appa Mali, which concluded that Half III of the Structure doesn’t grant basic rights to non-public legal guidelines. In India, the place secular administration and private legal guidelines coexist, it subtly introduced consideration to the complexity of secularism. A precedent for the judiciary’s non-intervention in private legal guidelines was established by this case. Nevertheless, it was overruled within the Indian Younger Attorneys Assn. v. State of Kerala, by which the take a look at of constitutional morality was invoked, in line with which not even private or non secular legal guidelines may override the constitutional provisions of equality.

In Mohd. Hanif Quareshi v. State of Bihar, in line with the Directive Rules of State Coverage, the Supreme Courtroom upheld the state’s authority to manage slaughter. This laid the inspiration for deciphering secularism as not strictly separating faith and state however moderately treating all religions equally. It additionally illustrated the state’s accountability to strike a steadiness between secular beliefs and cultural and spiritual practices.

Within the case of Indira Gandhi v. Raj Narain, the Supreme Courtroom of India interpreted secularism to imply that the state shall don’t have any faith of its personal and the residents residing within the nation shall be given an equal proper to have freedom of conscience and freedom to propagate, follow and profess any faith.

Within the case of S.R. Bommai v. Union of India, Secularism was established as a primary function of the COI. This view was reiterated in Kesavananda Bharati v. State of Kerala and it was held that the Parliament has the facility to amend the Structure however can not change the essential construction of the Structure. In Ziyauddin Bukhari v. Brijmohan Ram Das Mehra, the courtroom whereas holding Secularism as part of the essential construction, acknowledged that the State ought to be neutral in extending its advantages to all of the castes and may make sure that disabilities should not imposed on folks based mostly on their faith.

CAA, alternatively, has supplied immunity to folks belonging to six minority religions, particularly, Jains, Sikhs, Hindus, Buddhists, Christians and Parsis coming into India as unlawful migrants from Pakistan, Bangladesh, and Afghanistan earlier than thirty first December, 2014. This requirement to qualify as a citizen based mostly on one’s faith goes immediately in opposition to Secularism. The justification for this has been that they’re the religiously prosecuted minorities in such nations. Nevertheless, Ahmadiyya Muslims, a religion inside the Muslim neighborhood, in Pakistan, who additionally face the brunt of prosecution have been supplied no such safety by the CAA by way of which they’ll enter India and be supplied with citizenships.

The CAA particularly targets Muslims, which could be demonstrated with the assistance of a hypothetical scenario, whereby, a Hindu from Pakistan who has by no means confronted prosecution in his life has come to India for higher financial prospects, and could be entitled to citizenship; nevertheless, a Muslim from Sri Lanka, who has come to India by saving himself from the non secular persecution in Sri Lanka, is not going to be entitled to citizenship.

Ana Parveen and others v. Union of India additionally level out the discriminatory nature of CAA. On this case, Mohd. Qamar, a Muslim, was topic to extended detention, which he wouldn’t have been, had he been a non-Muslim.

The principles for implementing CAA, got here within the holy month of Ramadan, which is a sign of the hatred in opposition to a specific faith.

The affordable classification take a look at beneath Article 14 of the COI, which offers for equality earlier than legislation and equal safety of legal guidelines, once more comes up for consideration whereas contemplating CAA individually. In Navtej Singh Johar v. Union of India, it was supplied that the classification ought to be based mostly on a benchmark, which in flip ought to be affordable. It was additionally held that it can’t be based mostly on an intrinsic and core trait of a person. As in opposition to this, the CAA bases the classification solely on the faith of the people.

In E.P. Royappa v. State of Tamil Nadu, the Supreme Courtroom of India has restated the which means of Article 14 explaining that equality is the whole antithesis of arbitrariness. The Courtroom held that if any governmental act or laws is bigoted then it ought to be put aside for violating the fitting to equality earlier than the legislation of different residents. The proposal is that the present sort of exclusion that’s restricted solely by faith and has no rational relation to the aims of the Act is a breach of Article 14, as Muslims are unjustly denied their proper to citizenship.

In Maneka Gandhi v. Union of India, the Supreme Courtroom expanded Article 14 to imply that laws and state actions have to satisfy the take a look at of reasonableness and non-arbitrariness. The Courtroom emphasised that there could be no query of equality till and until it’s accompanied by equity. The CAA has been described as Discriminatory and irrational as a result of this legislation grants citizenship privilege to some non secular communities whereas denying the identical to different communities.

State of West Bengal v. Anwar Ali Sarkar laid down the precept that any classification beneath Article 14 should not be arbitrary and may have an inexpensive nexus with the thing sought to be achieved by the laws. The CAA’s omission of Muslims from its purview has drawn criticism for having no affordable nexus to its professed aim of combating non secular persecution.

The article clause of CAA reads as “to shield those that have confronted non secular persecutions in Afghanistan, Pakistan, and Bangladesh.” Another communities, as an illustration, Ahmadiyyas in Pakistan and Hazara neighborhood in Afghanistan additionally face non secular persecution however have been denied citizenship. It’s thus submitted, that it fails the affordable classification take a look at beneath Article 14 of the COI.

Aside from the affordable classification take a look at, it was held in Shayara Bano v. Union of India, {that a} statute can fall foul, whether it is manifestly arbitrary in nature. The grounds for choosing the nations which have been chosen lack a foundation, because it was solely Pakistan and Bangladesh, which had been a part of the erstwhile India. However, if the bordered nations had been being included, then why nations like Myanmar, Sri Lanka, Bhutan, Nepal, and so on. have been excluded? In Sharma Transport v. Authorities of AP, it was held that there have to be a precept behind a call. It’s submitted that the precept behind the choice concerning the selection of nation falls foul on this floor. Even, differential remedy of the prisoners based mostly on their totally different nations was held violative of Article 14 of the COI in Madhu Limaye v. The Superintendent, Tihar Jail, Delhi.

Elaborating on it, CAA’s arbitrary nature could be gathered from the truth that the Eelam Tamils, prosecuted minorities in Sri Lanka, which additionally has a State faith, kind the most important refugee group in India, and Bhutan, which oppresses the Non-Buddhist actions and has Vajrayana Buddhism as state faith haven’t been included within the CAA. So, the reasoning that the Recognized International locations have a state faith falls foul. Their Islamic Structure can’t be cited as a motive for a similar, as India, being a Secular State can not shield or deny safety to the immigrants on the idea of faith. Even the Rohingya Muslims of Myanmar, sometimes called probably the most persecuted minority on this planet, have been excluded from the purview of CAA.

Article 15 of the COI prohibits discrimination on the grounds of faith, race, caste, and so on. and if any classification is discovered on such grounds, it turns into prima facie an impermissible classification beneath Article 14 of the COI. The CAA immediately contradicts this provision and makes a discriminatory classification in opposition to Muslims on the idea of faith.

Article 21 of the COI offers that no particular person shall be disadvantaged of his life or private liberty. The Article has been interpreted to be fairly in depth in scope. It contains the fitting to growth, the fitting to livelihood, the fitting to reside with dignity, and so on. in its ambit.

The suitable to reside with dignity could be seen as being violated because the statute is discriminatory in nature and the function of Secularism has additionally been concurrently violated because it discriminates on the idea of faith.

In Surinder Singh v. State of Punjab, it was held that an individual is disadvantaged of his liberty if a process which is to be adopted, isn’t affordable, truthful or simply. The CAA learn with the NRC has been submitted to be probably arbitrary and unreasonable in nature and thus, it goes in opposition to the rule established within the Surinder Singh case.

If the CAA stays constitutional, the combination inhabitants of Assam and India will improve, which is able to result in elevated spending by the federal government for the migrants, which may moderately have been used for growth functions. It’s submitted that this results in the violation of the Proper to Improvement.

Because the CAA is discovered to contravene the ideas of equality and non-discrimination supplied beneath Article 14 and 15 of the COI respectively, amongst different issues, it ought to be struck down beneath Article 13(2) of the COI, which offers that any legislation ought to be held void to the extent it’s in contravention with the Basic Rights. Nevertheless, in R.M.D. Chamarbaugwala v. Union of India, it was held that if a statute comprises such provision, the legitimate and invalid components of that are so intertwined that they can’t be separated, then hanging down the entire of the availability is the fitting method ahead.

In Kesavananda Bharati v. State of Kerala, the judges agreed that the Democratic construction was part of the essential construction, and thus can’t be amended. Democracy postulates that the residents ought to have a free voice and opinion with regard to whom they wish to elect as their ruler. The legitimisation of the entry of unlawful immigrants and additional granting them citizenship by way of the method of naturalisation may even be entitled to vote within the elections of the actual constituencies. This is able to in flip be violative of the precept of democracy because it results in the dilution of the voting energy of the rightful residents.

The core tenets of U.S. citizenship are naturalisation with no regard to race and/or faith, in addition to birthright citizenship. To the identical impact, Canada’s insurance policies entail non-discrimination and multiculturalism and refugee and immigrants’ rights are protected beneath humanitarian grounds moderately than non secular identification, within the nation’s immigration legal guidelines.

An entire distinction can be supplied by European democracies comparable to France, Germany and the UK. Germany permits refugees based mostly on affordable concern of their persecution, in compliance with EU worldwide legislation. France’s strict secularism ensures that faith doesn’t affect governmental choices together with these concerning citizenship. The UK prioritises asylum seekers’ issues over authorized rights on citizenship.

The CAA is inconsistent with these strategies, because it associates faith and citizenship, which is devoid of neutrality and equality.

Regardless of not being a signatory of the UN Refugee Conference, India has all the time upheld values comparable to non-discrimination and non-refoulement. The CAA goes in opposition to the basics of those beliefs by omitting Muslims (such because the Rohingyas or Ahmadiyyas), from its purview.

The CAA grants an excessive amount of discretion to the chief concerning the determination of citizenship, with out having any standards or foundation upon which the people who’re religiously persecuted could be decided. It creates two teams and divides the unlawful migrants on the idea of who entered India earlier than the deadline and who entered after the deadline, with none reasoning as to why the identical rights haven’t been accorded to the latter as the previous. In The State of West Bengal v. Anwar Ali, it was held {that a} legislation falls foul of the COI which discriminates in opposition to one class which is concurrently positioned with one other, who’re accorded beneficial rights. On this regard, CAA is submitted to be under-inclusive. The CAA additionally goes in opposition to Articles 5 and 6 of COI, which defines who a ‘citizen’ is. Although, Article 11 of the COI offers some restricted powers to the Parliament to make legal guidelines on this regard, nevertheless, it’s submitted that such powers should not unfettered in nature. The Indian Union Muslim League filed a petition beneath Article 32 of the COI difficult the constitutionality of the invoice and numerous related petitions had been tagged to it quickly, which prayed for the courtroom to strike down the notifications which exempt unlawful migrants from the Recognized Communities from Recognized International locations to be deported and detained beneath the Passport (Entry into India) Act, 1920 and Foreigners Act, 1946.

In Bachan Singh v. State of Punjab, the Supreme Courtroom held that the ‘direct and inevitable penalties’ of a specific statute should all the time be considered. The NRC course of combined with CAA, may strip Muslims of citizenship, which is already beneath method in Assam.

Half III of the COI comprises the Basic Rights, which acts as a fetter on the powers of the Parliament and thus upholds the fitting to reside with dignity of each particular person. These Basic Rights embrace the Proper to Equality beneath Article 14, and the Proper to Life and Private Liberty beneath Article 21 amongst others. The CAA, it’s submitted, violates these rights and different Basic and Constitutional Rights. The Basic Rights have been held to be part of the essential construction of the COI. Parliament doesn’t have the facility to destroy the essential construction of the COI and thus, it’s submitted that the CAA is violative of the essential construction doctrine and ought to be held as invalid. Aside from this, the CAA essentially undermines key ideas of the COI, comparable to secularism, equality, and dignity, and likewise impacts the integrity of India as a democracy.

Nevertheless, the CAA has been carried out since March 11, 2024, by way of the publication of the Citizenship (Modification) Guidelines, 2024 by the Ministry of House Affairs. Amnesty Worldwide has singled out that the CAA is illegal in line with worldwide follow and the COI. The Act, the organisation stated would possibly instigate discrimination amongst Muslims and different minorities and known as for its repeal. However, as of January 2025, the Courtroom has not made its ultimate determination as to the above points.