News By/Courtesy: Ritwik Guha Mustafi | 09 Apr 2020 10:24am IST

HIGHLIGHTS

  • The 2019 amendment to the citizenship laws sparked a lot of controversy
  • It was contended that religion has been a major criterion for this amendment
  • This amendment has made some unreasonable classifications as well

'Citizenship is what makes a republic, monarchies can do without it’. Active citizenship is more than political participation within the existing framework of laws and institutions and includes critical protests that question the founding framework.[1] Etymologically, citizen is one who lives in a city and citizenship is the status of the citizen, a symbol that gives recognition that a citizen is the resident of the city.[2] The one end of citizenship is the set of rights enjoyed by the individual and the other is the set of duties one has to perform. Citizenship implies the membership of the state, bestows a status, and grants recognition but with these, it demands participation in the activities of the state.[3]

In India, the citizenship is conferred by the virtue of Part II of the Indian Constitution. Every person who has his domicile in territory of India and who was born in India, or either of whose parents was born in India, or who were resident in India five years prior to commencement of the Constitution, is a citizen of India.[4] The legislation dealing with this matter is The Citizenship Act of 1955. This act provides various modes of acquisition of Indian citizenship, deals with termination of Indian citizenship to a person, the citizenship certificates to be provided by the government etc.

The current Indian nationality law largely follows jus sanguinis (citizenship by descent) as opposed to jus soli (citizenship by right of birth within the territory).[5] The Citizenship act has been amended in 1986, 1992, 2003, 2005, 2015, and most recently in 2019. The 1986 amendment restricted the citizenship by birth to require at least one parent to be an Indian citizen.[6] The 2003 amendment further restricted this aspect by requiring that a parent cannot be an illegal immigrant {Sec. 3 (c) (ii)}. This amendment also mandated the construction of National Register of Citizens by the Indian government {Sec. 12}.

The 2019 amendment has sparked a lot of controversy in India. It is contended that religion has been overtly used as a criterion under Indian citizenship laws. During the discussions over the Citizenship (Amendment) Act 2019 {hereinafter CAA), the declaration of Home Ministry of India to start a nationwide National Register of Citizens (hereinafter NRC) has sparked many debates which stem from NRC’s poor record in the state of Assam. The researcher has focussed on the issues arising out of CAA, the problems of NRC in Assam, and a brief description of the NPR. The purpose is to examine the validity and practicality of these laws. It can be hypothesised that the current amendment to the citizenship laws of India is flawed and has to be changed immediately for maintaining the secular nature of the Indian republic.

The disputed provisions of CAA, 2019.

The  Sec. 2 of CAA 2019 amends the 1955 Citizenship Act for giving eligibility to illegal migrants who are Hindus, Sikhs, Budhhists, Jains, Parsis, and Christians from Pakistan, Afghanistan, and Bangladesh, and who entered India on or before 31st December, 2014 {Proviso to Sec. 2 (1) (b) of 1955 Citizenship Act). As per sec. 3 of the CAA 2019, the Central government is empowered to provide certificate of naturalisation to the abovementioned categories of people coming from the three aforementioned countries and the period of naturalisation for those categories is relaxed from 11 years to 5 years.

The tribal areas of Assam, Meghalaya, and Tripura as well as areas regulated through the Inner Line Permit, including Arunachal Pradesh, Mizoram, and Nagaland are excluded from the purview of this act.[7]

Issues regarding the CAA, 2019.

  • The amendment was made to protect the victims of religious persecution. But there is no mention about the Muslim community in the act. Ironically, the three countries- Pakistan, Afghanistan, and Bangladesh that the act focuses upon are Muslim-majority countries. Privileging only a specific form of persecution i.e. the religious persecution over all other forms of persecution of minorities is arbitrary and discriminatory. For example- Ahmadi and Shia Muslims face religious persecution in Pakistan or Hazara (Shia) Muslims from Afghanistan are equally persecuted in consonance with these communities. There is violation of article 14 of the Indian Constitution.[8]
  • No concern is there about the victims of religious prosecution in countries other than the three aforesaid countries.
  • The areas of North-East India included under the purview of the act (Large areas of Assam, Meghalaya, and Tripura) poses the danger of massive influx of the immigrants which may alter the demographic and cultural uniqueness of the areas.[9]

CAA, 2019 has made 4 classifications, namely[10]:-

  • Between Muslim and non- Muslim migrants from Pakistan, Afghanistan, and Bangladesh.
  • Between migrants from the three aforesaid countries and those from other nations.
  • Between victims of religious persecution and other forms of persecution.
  • Illegal migrants entering India on/before 30th 2014 and those entering after that.

These classifications are discriminatory in nature and violate the equality clause within the Indian Constitution. The CAA, 2019 violates article 14 of the Indian Constitution as it does not fulfil the two conditions required to pass the test for permissible classification, namely: (1) the classification must be founded on an intelligible differentia which distinguishes persons/things grouped together from those left out, and (2) the differentia must have a rational nexus with the object that is to be achieved [11].

Suggestions.

  • The Muslims are to be added in the categories of migrants in the CAA, 2019 and the other arbitrary classifications are to be removed.
  • The life of refugees is often worse than animals due to lack of adequate resources. The development standards are to be improved for effective accommodation of refugees.

 

[1] G. PATMORE & K. RUBENSTEIN, LAW AND DEMOCRACY: CONTEMPORARY QUESTIONS 131-132 (2014)

[2] N.D. ARORA & S.S. AWASTHI, INTRODUCTION TO POLITICAL THEORY 157 (1999)

[3] Rajeev Singh, Citizenship, Exclusion & Indian Muslims, 71 The Indian Journal of Political Science 497, 497-498 (2010).

[4] INDIA CONST. art. 5.

[5] C. Rajghatta, As Trump strikes at birthright citizenship, Americans- and Indians- look up 14th amendment, TIMES OF INDIA (April 9, 2020, 11:00 A.M.), https://timesofindia.indiatimes.com/world/us/as-trump-strike-at-birthright-citizenship-americans-and-indians-look-up-14th-amendment/articleshow/66450132.cms

[6] Taniya Midha, Citizenship Act: Govt. changes the criteria qualifying a person as a citizen of India, INDIA TODAY (April 9, 2020, 11:05 A.M.), https://www.indiatoday.in/magazine/indiascope/story/19861215-citizenship-act-govt-changes-criteria-qualifying-a-person-as-a-citizen-of-india-801552-1986-12-15

[7] Roshni Sinha, Bill Summary:  The Citizenship (Amendment) Bill, 2019, PRS LEGISLATIVE RESEARCH (April 9, 2020, 11:08 A.M.), https://prsindia.org/node/843781/chapters-at-a-glance

[8] Digvijay Sahni, National Register of Citizens and The Citizenship (Amendment) Act, 2019, CCRD VIDHIAAGAZ (April 9, 2020, 11:10 A.M.), https://ccrd.vidhiaagaz.com/national-register-of-citizens-and-the-citizenship-amendment-act-2019/

[9] Times of India, Citizenship (Amendment) Act 2019: Why has it triggered protests?, TIMES OF INDIA (April 9, 2020, 11:13 A.M.), https://timesofindia.indiatimes.com/india/caa-bill-what-is-citizenship-amendment-act-2019/articleshow/72831355.cms

[10] Akanksha Jain, Four new petitions against CAA in SC, says it privileges specified religious persecution, LIVE LAW (April 9, 2020, 11:15 A.M.), www.livelaw.in.

[11] State of West Bengal v/s Anwar Ali Sarkar, 1952 SCR 284 (India).

Section Editor: Pushpit Singh | 09 Apr 2020 17:15pm IST


Tags : Amendment, citizenship, controversy, religion, unreasonable, classifications

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