ANALYSIS OF THE STATUTE- CITIZENSHIP (AMENDMENT) ACT, 2019

INTRODUCTION

Post partition and independence, it became necessary to enact a legislation which governs citizenship laws of a nation. Citizenship not only recognizes the legal identity and provide rights to an individual of a country but also protects their welfare and provides nationality granting protection across the world. Citizens are subjected to better legal status, rights, protection, and facilities provided by state. “Citizenship Act, 1955” was enacted by the Government of India for the said purpose. As per the provisions of the Act, citizenship can be acquired in India in five ways i.e. by birth, by descent, by registration, by naturalisation and by the incorporation of a territory into India.

Following the abrogation of article 370, the introduction of “Citizenship Amendment Bill, 2019” introduced in the month of December emerged as another socio-political agenda leading to protests and riots. The said bill was passed by both the houses of Parliament and has emerged as an Amendment Act on December 11th, 2019 and the very next day it received the assent of the President of India. Even its constitutional validity was challenged in over 100 petitions in Hon’ble Supreme Court of India which has denied granting any stay on the operation of the said Act but as vehemently agreed to examine its constitutional validity.

MAIN PROVISIONS OF CAA (What does the Act intend to Change?)

In order to understand the effect of CAA 2019, it is important to comprehend and analyse it in comparison with Citizenship Act,1955. This analysis and examination for your kind perusal has been done under following heads: –

ILLEGAL IMMIGRANTS

The “Section 2(1)(b)[1] of the Citizenship Act,1955” defines illegal immigrants as any person who is a foreigner entering India without a valid passport or staying in the territory beyond the permitted time and such person being an illegal immigrant was not allowed to obtain the citizenship of India till the CAA,2019 came.

But CAA 2019 inserts a proviso to section 2 of Citizenship Act and excludes “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”, thereby not treating them as illegal immigrant under the definition of said act.  This was done in view to protect religious minorities who encountered persecution in name of religion in the Islamic countries being “Afghanistan, Pakistan, and Bangladesh.”

CITIZENSHIP BY NATURALISATION- CERTIFICATE OF REGISTRATION

CAA,2019 amends the Principal Act inserting section 6B for granting certificate of registration by way of naturalisation to immigrants fulfilling above condition and also the conditions specified in section 5 and Third Schedule of the Principal Act. Also, clause (d) is inserted in Third Schedule changing the aggregate period of residence in India, from minimum of 11 years to 5 years.

Section 6B (3) of CAA,2019 also nullifies any proceeding pending against any person for being illegal immigrant, who qualifies to make application for citizenship now as per above provisions.

EXEMPTION TO STATES

Section 6B (4) of CAA, 2019 provides exemption to “tribal areas of Assam, Meghalaya, Mizoram or Tripura” as declared to have autonomous districts and regions and special provisions as to their administration under the Sixth Schedule of the Constitution.[2]

The section covers the areas in “Inner Line Permit (ILP) notified under the Bengal Eastern Frontier Regulation, 1873” and as it has been observed that Manipur would be negatively affected by the Act, therefore, Home Minister has made an announcement to include Manipur under the ambit of ILP.

The state of Sikkim has also requested for exclusion from the said Act in view of the special status provided to Sikkim and safeguard guaranteed under Article 371 (F)[3] of the Constitution.

OVERSEAS CITIZENSHIP

The Registration of Overseas Citizens of India was inserted by “Citizenship Amendment Act,2005” as section 7A according to which any person being citizen of another country other than Pakistan or Bangladesh may register to be overseas citizen of India subject to conditions provided in section 7A.

CAA,2019 inserts a clause 7(da), adding a ground for cancellation of registration of an overseas citizen being violation of any provision of any law in force in India.

Also, clause 7 (f) is inserted providing a reasonable opportunity of being heard to be given before such cancellation made under section 7 of the Principle Act.

CONFLICTS REGARDING CAA,2019

A series of protests started in the national capital region especially at Shaheen Bagh and near JNU campus. The situation got so worse and resistance turned into violent riots leading to burning of buses, killing of a police personnel and imposition of section 144[4] CrPC imposing Curfew. The following conflicts emerged after enactment of CAA,2019.

ACCUSATIONS OF EXCLUDING PARTICULAR RELIGIOUS COMMUNITY

The amendment act is alleged of being religiously biased as it has excluded a particular religious community while making amendment as to illegal immigrant and has only included the non-muslim communities of “Afghanistan, Pakistan and Bangladesh” to get citizenship of India.

Though it has to be considered that the countries in question are Islamic countries consisting of muslim majority and the amendment has been enacted with view to help people facing persecution is those neighbouring countries who come to India for shelter and a life of muslim is not endangered in an Islamic nation as of a non-muslim. Also, the Home Minister has given the reply for the accusation of being religiously biased stating that religion was the basis of partition which formed the basic foundation of the country.

CHALLENGING CONSTITUTIONAL VALIDITY OF CAA,2019

Hundreds of petitions have been filed in Hon’ble Supreme Court of India, challenging the constitutionality of CAA,2019 alleging it to be violative of article 14[5] as a particular religious group is not included within the purview and protection of the Act against illegal immigration. The Apex Court has held ‘right to equality’ as one of the basic features of Constitution.[6] “This rule is not absolute and permits classification between groups of people if there exists some rationale that serves a reasonable purpose.”[7] And the act is in consonance with doctrine of reasonable classification providing “a reasonable nexus between the object sought to be achieved and legislation.” The Hon’ble Court is examining such reasonableness and nexus but has refused to grant stay on the operation of the CAA, 2019.

CONFLICT OF ASSAM

Also, there have been significant protests in the state of Assam as the CAA, 2019 contravenes with the promise made to them in Assam accord in 1985, which was made in return of long resistance by people demanding expulsion of illegal immigrants from Assam and preserving the socio-cultural heritage of Assamese people. As per the Accord, a person to be deemed as illegal migrant who could not prove the presence of his ancestors before 24th March 1971 irrespective of religion. The NRC would have carried this task and deport illegal immigrants but now after CAA,2019 such illegal immigrants belonging to non-muslim communities cannot be deported. But the Assam Accord has not been implemented yet.

CONCLUSION

The amendment is just a step towards the bigger plan that is the need of the hour as an action is required to be taken against the illegal immigrants considering the population, resources and law of the land and such illegal immigrants were planned to be put in Detention Centers by the Government. The amendment is merely a relaxation given to people who have been facing persecution on the basis of religion in neighboring Islamic nations, thereby not extending the blanket of protection to a particular section as they could not be facing any religious persecution in their own nation. Also, the protection in article 14 does not apply to offenders absolutely and illegal immigrants are nothing but offenders in eyes of law. The conflict in Assam needs to be resolved in view of promises made to them in Assam Accord and exemption must be granted to the state of Assam as well. Thus, strict penalties and punishments should be given to violent protesters and those who tend to take law in their hands, thereby destroying public property and rendering hatred and violence in society. The law in modern times has observed that not every irrational demand of the people could be fulfilled under the veil of human rights.


[1] “illegal immigrant means a foreigner who enters India: a). Without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or b). With valid documents but stays in India beyond the permitted period of time.”

[2] “SIXTH SCHEDULE- Articles 244(2) and 275(1) – Provisions as to the Administration of Tribal Areas in [the States of Assam, Meghalaya, Tripura and Mizoram], the Constitution of India,1950.”

[3] “371F. Special provisions with respect to the State of Sikkim” 

[4] “144. Power to issue order in urgent cases of nuisance of apprehended danger”

[5] “14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

[6] “Indira Nehru Gandhi vs Shri Raj Narain 1975 AIR 2299 1976 (2) SCR 347”

[7] “The State Of West Bengal vs Anwar All Sarkarhabib 1952 AIR 75, 1952 SCR 284”

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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