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This article is written by Mariya Paliwala of seventh semester, pursuing B.A.LL.B, at MohanLal Sukhadiya University College of Law, Udaipur, Rajasthan. This article consists of a detailed elaboration on the Citizenship (Amendment) Act, 2019 in the light of Indian Constitution, 1950.

Introduction 

India is perhaps the only nation which has included in its constitution the concept of citizenship under Part II (from Article 5 to 11).1 The prominent reason behind inserting citizenship into the constitution was overcome the problems of partition after the independence of India. 

Under Article 11 of the constitution the Parliament exercised its power and introduced a bill in both houses. Finally it got assent by the President of India on 12th December, 2019. Hence, this amendment was applicable on the principle Act i.e. the Citizenship Act, 1955. 

What is the Citizenship (Amendment) Act, 2019 (CAA)?

Amendment of Section 22

As per the amendment under Section 2, a proviso was added wherein the citizenship was granted on communal lines. It says that:

  • Hindu,
  • Jain,
  • Parsi,
  • Buddhist,
  • Sikh,
  • Christians.

The people of above mentioned communities have entered into India from the following neighbouring nations:

  • Pakistan,
  • Bangladesh,
  • Afghanistan.

Before 31st December, 2014 will be given the Indian citizenship.

Constitutional Validity 

This amendment is unconstitutional on the basis of the following grounds:

  • Against Secularism

The preamble of the constitution says that India is a Secular Nation. The word ‘secularism’ means that there is no state religion, the state does not promote or demote any group on the lines of religion. However, in this amendment the granting and non-granting of citizenship is based on religion, which is clearly evident from the absence of muslims in the proviso under Section 2 of the Amended Act. 

  • Against the notion of Equality

Part III (Article 12 to 35) grants the fundamental rights and Article 14 and 15 as it talks about Equality Before the Law and prohibition of discrimination respectively. However, this Amendment Act is a result of the infringement of Article 14 and 153 where the government discriminated on the basis of religion thereby violating equality amongst Indians.

  • Lack religious tolerance 

India is considered to be one of the religious tolerant nations of this world. It is the prominent example of ‘unity in diversity’. However, this law seems as if the law was enacted keeping in mind the politics on religious lines and enact discriminatory policies so as to promote extremist ideology. 

Impact on Assamese 

People in Assam are at mass protest and public demonstrations.They claim that this Citizenship (Amendment) Act, 2019 has violated the norms of Assam Accor. As per Clause 5(3) of Assam Accord, the date of deportation and detection of immigrants/ foreigners was after 24th March, 1971. 4However, now this amendment has new cut-off date i.e. 31st December, 2014, which is a matter of protest. Thus, the change in cut-off date and violation of Assam Accord is the basis of the protest.

Moreover, the Assamese are of the point of view that granting of citizenship to the Bangladeshi Hindus will not only adversely affect their linguistic and ethinic culture but also increase in the problem of unemployment in the state of Assam. 

Amendment in the III Schedule of the Principal Act

In the third schedule of the Citizenship Act, 1955, in clause (d) the aggregate period of residence and service of government faced changes wherein the phrase “not less than eleven years” was replaced with “not less than five years”. This amendment ment is applicable on Hindu, Parsi, Sikh, Bhuddhist, Jains and Christains. 

Constitutional Validity

This amendment is unconstitutional as it is a clear infringement of Article 16 which promotes equality in the matter of public employment.

However, under this Amendment Hindu, Parsi, Sikh, Bhuddhist, Jains and Christains will be eligible for service in government and residence after 5 years. But a Muslim has to wait for eleven years to get residence and sevice in goverment. Thus, this amendment is not uniformly applicable in whole of India.

Impact on Assamese

This change in the time period from eleven years to five years for the non-muslims for the purpose of residence and services in government will curb the original population of Assamese and may convert that population into minority thereby making the end of their culture. Not only this, the Assamese has to face humongous competition in front of them leading to rise in unemployment ultimately leading to the rise in poverty. Therefore, this amendment brings a new challenges in every sphere such as; 

  • Social (in terms of society, distribution of resources, etc.);
  • Political (in terms of contesting elections, voting rights and majority ideologies);
  • Administrative; (in terms of rule making and policies regulating and governance); 
  • Ethnic and culture (in terms of language, rituals,norms, heritage etc.); 
  • Economic areas (equal distribution of resources, employment, eradication of poverty etc.) 
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What is NRC?

National Register of Citizens (NRC) is an official record of those people who are the legal citizens of India. This record is based on the demographic information who fit in the criteria established by the Citizenship Act, 1955 were considered citizens of India. 

Why was NRC updated in Assam? 

This was the unique exercise done in the state of Assam so as to keep the identity of the local people intact and to oust all the illegal immigrants/ foreigners who influxed into Assam from the neighbouring countries like Bangladesh. In 2013, a writ petition was filed by Assam Sanmilita Mahasangha & Ors in the Supreme court stating the demand that the names of the illegal immigrants must be struck down from the voters list.

Addressing this issue the apex court ordered that there must be updation in NRC and NRC must be in accordance with Citizenship Rules 2003 and Citizenship Act, 1955. The implementation of this order started in 2015 and the final NRC was released on 31st August, 2015 wherein 1.9 million applicant names were missing in the list 5.

What is the scope of NRC and CAA together?

NRC coupled with CAA clearly discriminates on the basis of religion wherein the whole Indian society is divided into muslims and non-muslim. As per NRC a person will be asked to prove that he belonged to India as his ancestors were born and reside in India.

However, CAA provides citizenship to all the non-muslims. If in case a person is Muslim then he will not be entitled for the benifit under CAA. But if a person is muslim he has no choice but he has to prove that his ancestors were of Indian origin and if they failed to prove it they will be left with no rights.

Though, it must be taken into consideration that documents such as electricity bills or tac slips or birth certificate can be the eminent proof for any person to prove his/her nationality. However, under this Amendment Act no such proof is taken into consideration. Instead a person has to prove it by tracing the existences of his ancestors.

Legislature’s intent behind CAA

Most of the parliamentarians claims that CAA is not anti-muslims. However, they claim that by leaving out Muslims, the legislature dimension can be clearly derived. They claim that the idea is to provide protection to the religiously persecuted minorities in the muslim majority neighbouring countries like Bangladesh, Afghanistan and Pakistan. Moreover, it is assumed that Muslims can not bereligiously persecuted in muslim majority countries. 

It is also said that India is not only the home of Hindus but also Sikh, Jain, Christains, Buddhist and Parsi. 

Arguments against CAA

Violative of the Constitution of India

The Citizenship (Amendment) Act, 2019 is completely based on the idea of facism and extremism. Moreover, this amendment is clearly the infringement of Secularism and violation of Fundamental rights (Article 14 and 15).

Inefficiency of India in dealing with already existing problems

India is already facing the problems such as poverty, malnutrition, unemployment, overpopulation. India is the second largest in the world in terms of population. Moreover, it does not have enough resources and employment opportunities for its own citizens, how can it provide all these things to immigrants irrespective of any caste or religion.

It is politics based on religion 

Most people argue that the ideology of this government is based on Hindutva. And Citizenship (Amendment) 2019 is a step towards converting the secular nation into an extremist nation. 

Strain on the Indian Economy

The prominent argument is that this amendment proved to be a highly disruptive and can prove to be a strain on the economy in the long run. 

Disrupt the social structure

By giving citizenship to foreigners/ immigrants even though Hindu or Parsi or Buddhist or Jain or Christan will end up destroying the social status of Indians. Original inhabitants will become a minority in that area. This will not only lead to diminish their cultural, linguistic identity but also curb the opportunities in public employment, education leading to unemployment and poverty, which is now the situation in Assam.

Judiciary on the CAA

Due to prolonged protest against the Citizenship (Amendment) Act, 2019 lead to 21 people injured in the violence. To avoid these riots and violence the Supreme Court asked the centre to publicise the real information pertaining to the Citizenship (Amendment) Act, 2019 so as to curb the circulation of fake news. A betch headed by Chief Justice of India S.A. Bobde decided to analyse and examine constitutional validity of the CAA in the month of January. 

Student’s reaction to CAA

The student agitated against the Citizenship (Amendment) Act, 2019. Students considered the CAA to be an anachronism in itself.It can be said that there was nothing directly or indirectly adversely affecting the interests of the students in particular. The CAA is considered to be anti-Muslim, which perhaps is one of the significant reason for the students from Jamia Millia Islamia and Aligarh Muslim University to take the leadership of the agitation with the politically notorious JNU and Jadavpur Universities joining in. But this has also exposed the sectarian nature of the revolt. Now the issue is likely to be diverted as atrocities of the police on Jamia students. However, as a matter of fact it is actually the youth who are the future of this nation and their point of view must be given the utmost importance. 

Students in most of the universities raised their voice in solidarity against CAA. The prominent universities like Jamia, Aligarh Muslim University (AMU), Maulana Azad National Urdu University (MANUU) or Nadwa College. It also included unusual centres of political action like Jadavpur University or Jawaharlal Nehru University (JNU) or The Tata Institute of Social Sciences. This time there was a huge outrage amongst the students from the AIIMS, IITs, IIMs, Indian Institute of Science and even the private universities joined their counterparts in premiere public universities in Chennai, Pune, Chandigarh, Delhi, Kolkata, Lucknow and Bhopal, besides institutions in small-town India, to express solidarity with the students in Jamia.

Conclusion 

Therefore, it can be concluded by asking a few questions:

Firstly, shouldn’t such kinds of law be made for the Hindu refugees coming from Sri Lanka?

Secondly, if providing shelter and doing charity is the notion of the government then shouldn’t it must be equally applicable on all the refugees irrespective of the fact that from where they are coming from?

Thirdly, is it rationally correct to apply autocratic laws on people and then cut-off there internet connections so that their Freedom of Speech and Expression under Article 19 (Part III) is curbed in totality?

Wherefore, it can be said that government has empowered under Article 11 (Part II) of the Constitution of India to enact laws pertaining to citizenship as it thinks fit. However, Article 13 (Part III) restricts the parliamentarians to make laws which are in derogation with the fundamental rights of the Indians. And this Amendment is a violation of Part III of the constitution. 

For instance, genocide in Germany was not the result of gas chambers, however it was the result of ‘hate speech’ which was delivered by Adolf Hitler. Similarly, in India the arbitrary provisions pertaining to Citizenship (Amendment) Act, 2019 is a result of communal hatred and party politics on the line of religion. 

References

  1. Know more about laws relating to citizenship in India; https://blog.ipleaders.in/law-related-to-citizenship-in-india/
  2. http://egazette.nic.in/WriteReadData/2019/214646.pdf
  3. https://blog.ipleaders.in/fundamental-right-right-to-equality/
  4. Assam Accord; https://assam.gov.in/en/main/ASSAM%20ACCORD
  5. How fate of 19 Lakh people hang in balance in Assam after the final NRC’s List, India Today; https://www.indiatoday.in/programme/in-depth/video/in-depth-how-fate-of-19-lakh-people-hangs-in-balance-in-assam-after-nrc-s-final-list-1595094-2019-09-03

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