The Contentious Citizenship Amendment Act, 2019
The Contentious Citizenship Amendment Act, 2019
- Dipali Singh
“WE, THE PEOPLE OF INDIA……”, denotes the citizens of India. They are identified and elucidated under the set of following laws: The Citizenship Act, 1955, the Foreigners Act, 1946, and the Passport (Entry into India) Act, 1920. These Acts are empowered to expel all infiltrators out of India. Illegal Immigrants are proscribed from acquiring Indian Citizenship. An illegal migrant may be a foreigner who: (i) enters the country without valid travel documents, sort of a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period. Citizenship Act, 1955 has undergone various amendments and its latest amendment-“The Citizenship (Amendment) Act, 2019”, also known as “CAA” has caused a great deal of political upheaval in India. Though ostensibly outlined to grant a beneficent pathway to Indian Citizenship for certain minorities that fled religious persecution from Pakistan, Afghanistan, and Bangladesh. CAA infracts the secular pneuma, which has been held to be a part of the “basic structure” of Indian Constitution. Besides, it also strikes Preamble, Article 15, 25, 29, and 30 of the Indian Constitution. In addition, it is also in contravention of Article 51C and Article 253 of the India Constitution that creates a responsibility to India to respect International law in its true ethos.
LAW PRECEEDING CAA-
The Articles on citizenship were formulated categorically for the instantaneous repercussions of the Partition, leaving it to parliament to sanction the law on citizenship, which it did in 1955. Under the Citizenship Act, 1955, a person can be granted citizenship in four ways, namely by birth; by descent; by registration; and by naturalisation. Any legal migrant, irrespective of his/her religion became eligible to apply for Indian Citizenship who was residing in India for a period of at least 12 years from the date of application. The Act did not provide for the grant of citizenship to illegal migrants in any circumstances. This Act also provides that the central government may cancel the registration of OCIs (Overseas Citizenship of India) on various grounds.
WHAT HAS CAA REMODELLED
The connotation of CAA can be interpreted in numerous ways. From a legal perspective, they imply a foundational shift in the formation of the Indian citizen embodied within the Constitution of India, followed by the Citizenship Act, 1955. This is a move from soil to blood as the rationale of citizenship, from a jus soli principle of citizenship in the direction of a jus sanguinis principle, and second, a shift from a religion-neutral law to a law that differentiates on the basis of religious identity.
It has modified the procedure and provisions related to the grant of citizenship by naturalisation. It has made it easier for non-Muslim immigrants from India’s three neighbours -Pakistan, Bangladesh, and Afghanistan to become citizens of India. It further grants citizenship to the Hindus, Christians, Sikhs, Buddhists, Jains, and Parsis facing religious persecution on account of their minority status from three Muslim majority countries who had arrived in India on or before 31 December 2014.
Moreover, Earlier, to apply for Indian Citizenship, the requirement was to stay in India for at least 12 years, but now it has been reduced to five years. This amendment has added one more ground for the cancellation of OCI registration. that is if OCI has violated any law notified by the central government.
ISSUES TO PONDER OVER-
•Unconstitutionality of CAA
Article 14 provides for equality before the law or equal protection of the laws within the territory of India and prohibits the State from framing arbitrary laws. Any law that differentiates between a gaggle of individuals must have a rationale nexus with the reasonable objective that the law seeks to realize. CAA provides differential treatment to migrants established on their religion; country of origin; date of entry into India. The authorities fizzled to explain how these differentiating factors serve an equitable purpose. Rather it’s “class legislation”, hence is fundamentally incorrect. As long as, the aim of the bill is to supply citizenship to immigrants escaping religious persecution, it’s not clear why illegal migrants belonging to other neighbouring countries like Sri Lanka and Myanmar are ostracized from the Bill. Sri Lanka has had a history of persecution of linguistic minorities, the Tamil Eelams, and Myanmar has had a history of persecution of religious minorities, the Rohingya Muslims. They flee from persecution from their countries and seek refuge in India.
•The Preamble of our Constitution
The Preamble defines India as a “secular” state, which suggests the State cannot favour one religion over the opposite and can’t discriminate on the basis of religion. Notably, CAA specifically excludes Muslims from the ambit of the Act. Therefore, a law which seeks to provide fast track citizenship to non- Muslim illegal immigrant while turning a blind eye to the utmost religious persecution of Muslims in neighbouring countries is against the constitutional ethos of secularism enshrined in our Constitution. “Persecution” means the intentional and severe deprivation of fundamental rights contrary to the law of nations by reason of the identity of the group or collectively.
•Wide circumspection to the government to cancel OCI registration
The Supreme Court has held that while delegating powers to executive authority, the legislature must prescribe a policy, standard, or rule for his or her guidance, which can set limits on the authority’s powers and not give them arbitrary discretion to make a decision on how to frame the principles. The Bill proposes to incorporate a sub-section (d) to Section 7, providing for cancellation of Overseas Citizen of India (OCI) registration where the OCI card-holder has violated any provision of the Citizenship Act or any other law effective. Giving the central government power to prescribe laws whose violation results in cancellation of OCI registration may amount to excessive delegation of power by the legislature. The powers given to the executive may go beyond the permissible limits of delegation.
•The nationwide protests
The spiralling protests against CAA simply refuse to bow down due to various reasons. There are two kinds of protests taking place across India. In the north-east, the protest is against the implementation of the Act. They fear that the Act will cause a rush of immigrants that may outnumber them and alter their linguistic and cultural uniqueness. The revolutionaries are demanding the implementation of the 1985 Assam Accord, which states that foreigners who entered Assam before annunciation were to be given citizenship and rest had to be expelled. CAA shifts the cut-off date from December 1951 to December 2014. In the rest of India, people are protesting against the exclusion of Muslims from the Act which is directly against India’s rich tradition of multiculturalism.
CONCLUDING REMARKS :-
The Citizenship(Amendment) Act, 2019, legitimizes discrimination, and blatantly seeks to enshrine religious discrimination into the law. This Act should be reviewed and replaced with appropriate legislation that would address the concerns of minorities and refugees in a non-discriminatory manner. India needs a genuine Refugee Law, not CAA permeated with inequitable intent.
REFERENCES :-
1.The Constitution of India, preamble.
2.The Citizenship Act, 1955 (Act 57 of 1955), s.2 cl.1(b).
3.S.R. Bommai v. Union of India, 1994 SCC (3) 1.
4.The Constitution of India, art.5-11.
5.Nirija Gopal Jayal, “ The CAA and NRC together will reopen wounds of Partition and turn India into a majoritarian state”, Scroll.in,Dec29,2019, available at, https://scroll.in/article/947458/the-caa-and-nrc-together-will-reopen-wounds-of-partition-and-turn-india-into-a-majoritarian-state#:~:text=Together%2C%20the%20NRC%20and%20the,citizens%20while%20others%20suffer%20the.
6.N Sathiya Moorthy, ”Why Lankan refugees are reluctant to go back home”, The Times of India city, Aug 29, 2018, available at, https://timesofindia.indiatimes.com/city/chennai/why-lankan-refugees-are-reluctant-to-go-back-home/articleshow/65591130.cms.
7.Eleanor Albert and Lindsay Maizland.” The Rohingaya Crisis”,Council on Foreign Relations, January 23,2020, available at, https://www.cfr.org/backgrounder/rohingya-crisis.
8.Rome Statute of the International Criminal Court, art.7,cl.2(g).
9.Hamdard Dawakhana and Anr., v. The Union of India (UOI) and Ors., AIR1960SC554
ET Online,” Citizenship (Amendment) Act,2019: What is it and why is it seen as a problem”, The Economic Times, Dec 31,2019, available at, https://economictimes.indiatimes.com/news/et-explains/citizenship-amendment-bill-what-does-it-do-and-why-is-it-seen-as-a-problem/articleshow/72436995.cms?from=mdr.
