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Citizenship (Amendment) Act, 2019

August 27, 2022

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This article is written by Vedika Goel of OP Jindal Global University, Haryana. This article provides a detailed analysis of the Citizenship (Amendment) Act, 2019 that aims to fast-track Indian citizenship for illegal non-muslim migrants.

This article has been published by Sneha Mahawar.

Introduction

On 11 December, 2019, Parliament passed the Citizenship (Amendment) Act 2019, also known as one of the most controversial amendments to have been passed by the Indian Parliament. The bill received Presidential assent on 12th December, 2019. The bill sought to amend the Indian Citizenship Act, 1955 by fast-tracking Indian citizenship for illegal migrants (Buddhists, Hindus, Sikhs, Jains, Parsis, Christians, and Afghanis) belonging to the states of Afghanistan, Pakistan, and Bangladesh. The Citizenship Amendment Bill was tabled in the Lok Sabha’s winter session. Subsequently, the bill was passed with a majority of 125 MPs voting in favour of it. The bill soon after its passing was heavily debated and ultimately led to widespread protests in many parts of the country. Many activists and international human rights organisations too have played a big part in these protests and have heavily condemned the Indian government’s response to these protests.

This article will deal with the features of the Citizenship Amendment Bill, along with a brief account of its aftermath. The article also discusses recent developments that have taken place with respect to the Act.

Citizenship in India

The Citizenship Act, 1955 provides for the various modes of acquiring citizenship in India. The Act also specifies the grounds on which citizenship can be terminated and renunciated. These four modes are birth, descent, registration, naturalisation, and incorporation of territory.

Birth: As the name suggests, a person under this category acquires citizenship if their birth has taken place in India.
Descent: Under this category, citizenship is granted to those who have been born to Indian parents outside the Indian territory.
Naturalisation/registration: Under this category, citizenship is granted by the Ministry of Home Affairs.
By acquisition/ incorporation of territory: Under this category, any state or territory that becomes a part of India shall be declared as a part of the Union of India through an official gazette published by the Central government.

The Act only specifies the above modes for acquiring citizenship by clarifying that no dual citizenship can be granted under Indian law. The Act also provided certain provisions for overseas citizens pertaining to the registration of the overseas citizen card, rights of overseas citizens and cancellation of the overseas citizen card.

Article 5 to Article 11 under Part 2 of the Indian Constitution specify the provisions governing citizenship in India. While Article 5 provides for citizenship at the time of commencement of the Indian Constitution, Article 11, on the other hand, confers powers on the Indian Parliament to legally regulate citizenship rights. This allowed for the enactment of the Indian Citizenship Act, 1955. The Indian Citizenship Act, 1955 has been amended 6 times in the years 1986, 1992, 2003, 2005, 2015 and finally in 2019. These amendments have narrowed down the mode of acquiring citizenship through universal principles such as birth.

Overview of Citizenship (Amendment) Act, 2019

Need of Citizenship (Amendment) Act

As per the government, the need for introducing the Act was felt due to the minorities escaping persecution in Muslim majority countries. The objective of the Act is to give citizenship to illegal immigrants or people who cannot give proof of residence. The CAA 2019 gives citizenship to illegal migrants from Pakistan, Bangladesh, and Afghanistan and lowers the qualification period for Indian citizenship from 11 to 5 years, provided such migrants enter the country on or before 31st December,2014. This gives the migrants the possibility of acquiring citizenship without presenting any documents. The CAA will therefore help such migrants acquire citizenship hassle-free as long as the above criteria are met. The CAA 2019 was therefore enacted to grant hassle-free citizenship to migrants who have faced religious persecution in these three neighbouring countries.

Features of Citizenship (Amendment) Act, 2019

Illegal migrants are prohibited from citizenship under the Indian Citizenship Act, 1955. The underlying objective behind the enactment of this Bill was to amend the old Act and grant citizenship to those illegal migrants who were persecuted in India’s neighbouring countries. The Bill restricted the migrants to six religions, namely Buddhists, Hindus, Sikhs, Jains, Parsis, Christians, and Afghanis. The legislation clearly included the words “those who fled due to religious persecution or had a fear of being persecuted” from the neighbouring states of Afghanistan, Pakistan and Bangladesh will be included in this bill.
Apart from this, the bill also included certain other amendments. Firstly, the cut off date for citizenship was now 31st December, 2014. This meant that one could only apply for citizenship if entry into India was made on or before the cutoff date.
The amendment also relaxed the naturalisation duration from 11 years to 5 years for all those belonging to the six minority religious groups.
Amendments for OCI (Overseas Citizen of India) holders were also introduced in the bill under Section 7D. A foreigner can register for OCI if their spouse is of Indian origin or if they themselves are of Indian origin. OCI cardholders will also be entitled to certain benefits, like the right to work and study in the country.
Section 6B, Clause 2 &3 of the Act states that such persons shall be deemed to be citizens of India from the date of entry into India, and all legal proceedings against such persons with respect to their illegal migration/citizenship shall be closed.

Exceptions to Citizenship (Amendment) Act, 2019

The Act has incorporated two major exceptions. Firstly, the Act will not be applicable to tribal areas, namely Meghalaya, Tripura, Mizoram, and Assam. The inclusion of these states in the 6th Schedule of the Indian Constitution is the main reason for bringing about this exception. Secondly, the Act will also not apply to the areas that are notified under the Inner Limit of the Bengal Eastern Frontier Regulation Act, 1873.

Shortcomings of Citizenship (Amendment) Act, 2019

Religious centric approach

One of the major issues with the Act was its religious-centric approach. It has been argued that the Act discriminates against citizenship on the basis of religion. It is shocking to know that around 144 petitions were filed before the Supreme Court against the CAA Act 2019. Moreover, the United Nations High Commissioner for Human Rights (OHCHR) also called the Act “fundamentally discriminatory”. The other concerning issue was that many believed that Muslim citizens would be rendered stateless due to the strict criteria of the Act.

Further, the exclusion of other religious minorities belonging to other religions, namely Myanmar, Tibet, and Sri Lanka, was also believed to be discriminatory to a large extent. It has therefore been argued that the primary objective of the Citizenship Act should be to provide citizenship and if the legislation is providing the same to the religious minorities of three neighbouring countries, then the same should be done for all religious minorities who were persecuted or were in fear of being persecuted. For instance, sects like Shias and Ahmedis also faced religious persecution in countries like Pakistan (muslim majority) but are nowhere considered in the new Bill.

Constitutionality

Another major issue was raised regarding the constitutionality of the Act. An act that solely invited illegal migrants based on religion was against secularism as well as Article 14 of the Indian Constitution which guarantees equality before the law. The term ‘secular’ was added to the preamble of the Constitution by the 42nd Amendment, 1976 which clearly provides that the State shall not be governed by one religion but equal respect will be given to all religions. This also means that no religion will be favoured in any policy. Clearly, in the CAA, apart from the six religious minorities, no other religious minorities were considered.

Another argument was raised against Article 25 and Article 26 of the Indian Constitution. Articles 25 and 26 grant freedom of religion, which allows anyone to practice the religion of their choice. However, religious minorities from other groups will not be free to practice their own religion since there will always be a possibility of being forced to convert to another religion in order to attract the relaxations granted by the CAA 2019.

Technical legal shortcomings

The 2019 Report of the Joint Parliamentary Committee on the Citizenship Amendment Bill 2016 (JPC Report) also identified certain technical-legal shortcomings of the CAA 2019. The argument raised in this report was that the CAA did not use the term ‘minority’ but only identified the six non-muslim minorities. It was also believed by the report that naming categories solely on a religious basis goes against the basic structure of the Constitution. The report pointed out how the Indian Constitution categorises minorities such as the Scheduled Castes (SC) and Schedules Tribes (ST) as secular. Therefore, instead of naming religions, it was argued that using the term ‘persecuted minorities’ would have been a better approach.

Assam Discord

There has also been considerable discussion against the Assam Discord and the CAA. It was argued that the CAA goes against the Assam Discord. Firstly, the modification of the date from 1974 to 2014 and the distinction made between Muslim and non-Muslim migrants have become problematic. This is because non-muslim migrants from Bangladesh who entered Assam after 1971 can also apply for Indian citizenship. This undoubtedly goes against the sentiments of the people of Assam and other North-Eastern states. The report expressed its concern regarding the identity of indigenous people on account of citizenship should not be threatened in any manner. This concern was, however, accommodated in the final Act by including an exception that excluded certain North-Eastern states and also the area included under the ‘Inner Line’( Arunachal Pradesh, Nagaland, and Mizoram).

Other issues

It was also argued that the CAA did not include atheists and Jews under the Act. Further, countries like Nepal, Bhutan, and Myanmar that are known to share land borders with India were also excluded. Interestingly, the reason given for this exclusion under the ‘Statement of Objects and Reasons’ is that the said countries explicitly provide for a state religion as constitutionally valid. Therefore, the Act aims to protect religious minorities in such states.

The aftermath of the Citizenship (Amendment) Act

The CAA Act of 2019 led to widespread protests in many parts of the country. From rallies to protests, the whole country was in a state of unrest after the Bill was passed. Not only India but the Bill was condemned globally. Protests were even witnessed in countries like Washington and North America, where Indian protestors stormed the roads to express their concerns regarding the Bill. Even students from various universities were a part of these protests and rallies. The government’s response to these protests shocked the country. The use of tear gas and batons by the police force on the protestors was seen as insensitive and brutal. On 24th February, 2020, over seven people were killed and more than 200 injured during the violent North East Delhi riots. Moreover, at least 27 people were believed to be killed in Uttar Pradesh and Kanpur as a result of the ongoing violent protests. The protest in the famous Shaheen Bagh, a Muslim neighbourhood, turned out to be the epicentre of the anti CAA movement. Violent protests also broke out in Assam after the news of the Act’s passing in 2019. Almost five people were found dead during the protests that took place in the state of Assam. Guwahti remained as the epicentre for the North-East protests and it was feared that the Bill would disturb the topography of the North-Eastern states by allowing people from different cultures and languages to be eligible for citizenship.

The COVID-19 pandemic brought these protests to a halt. However, the crackdown against activists continued despite the pandemic. Protestors and students have been continuously arrested and detained by the police authorities. Many young activists have been arrested under the Unlawful Activities (Prevention) Act 1967, which is famous for its strict bail provisions. The UNHCR has widely condemned these arrests and has openly asserted that the Indian government is simply taking away the right to raise their voice against the discriminatory bill by arresting activists and students.

Current developments

Amartya Sen, Nobel laureate economist recently quoted that when a nation is being divided for ‘political opportunism’, a powerful voice is what is needed. He also expressed how people being sent to jail without committing crimes continues even after independence. The comment was made regarding the arrest of activist Umar Khalid in September 2020 for the North-East Delhi violence that took place in February 2020 that left 53 people dead. He also expressed concern regarding how politically brave people continue to suffer at the hands of the government. Such people are not even being given a fair trial. He also urged the citizens to remain united.

Recently, West Bengal BJP President, Sukanta Majumdar, has asserted that the CAA will be implemented before the 2024 Lok Sabha Polls. He also remarked that a party like the BJP will never fail to meet its promises. He also cited Ram Mandir as an example.

Recently, the Chief Judicial Magistrate (CJM) Court denied the final report of the Assam Police on the death of a minor boy during the anti CAA protests. The father of the boy believed that the child was shot point blank by the police. The police, on the other hand, argued that the authorities were forced to use tear gas and rubber bullets to control the mob, and when the situation got out of control, the police resorted to blank firing, which caused the death of the boy. The government’s and the police authorities’ brutality was finally taken into account by the courts in this case.

Nityanand Rai, Union Minister of State for Home, clarified that the government is not considering any further amendments to the CAA Bill. He further added that the eligible beneficiaries can seek citizenship only after the rules are notified by the Central Government. The rules should be notified within 6 months of presidential assent, or otherwise, an extension must be sought. The government has received an extension for the fifth time to notify the rules.

Conclusion

The Citizenship (Amendment) Act, 2019 undoubtedly came as a shock to the country. While one community appreciated the move, the other community widely condemned and criticised it. Once again, the country was divided due to religious differences. The divide between Muslim and non-Muslim communities was triggered by this Act. While the government made every effort to justify the passing of this Act, various activists and students openly protested against the Act. The government’s response to the protests was not only brutal but highly insensitive. It raises an important question- Is India truly secular? Do people really have the right to freedom of speech and expression? The fact that over 100 lives were lost due to the CAA protests, one is forced to ask at what cost should the government enact a Bill that is majorly seen as discriminatory and whether in a truly democratic country like India, do people really have a say? The CAA Act has no doubt lowered the trust of the citizens in their government. It also shows a general disregard for the lives of its people. The government must pick out the ones who are genuinely responsible for inciting violence and not arrest those who only seemed to raise a genuine voice against the Act. The citizens must be united at all times and also pressurise the government to prioritise the basic rights of its citizens. The people must demand a government that is secular and democratic at all times.

Frequently Asked Questions (FAQs)

Has the Citizenship (Amendment) Act, 2019 passed?

The bill was passed by Parliament on 11th December, 2019. It received presidential assent 12th December, 2019. However, the rules are yet to be notified by the Central Government.

Which religious groups are included in the Citizenship (Amendment) Act?

The bill seeks citizenship for illegal migrants (Buddhists, Hindus, Sikhs, Jains, Parsis, Christians and Afghanis) belonging to the states of Afghanistan, Pakistan and Bangladesh.

What is the period of naturalisation in the new Act?

The Act relaxed the naturalisation duration from 11 years to 5 years for all those belonging to the six minority religious groups.

Are there any exceptions to Citizenship (Amendment) Act?

The Act will not be applicable to tribal areas, namely Meghalaya, Tripura, Mizoram, and Assam and the Act will also not apply to the areas that are notified under the Inner Limit of the Bengal Eastern Frontier Regulation Act, 1873.

References

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