Constitutional Validity of Citizen Amendment Act (CAA), 2019 – Anshu Sharma

Constitutional Validity of Citizen Amendment Act (CAA), 2019

By

Anshu Sharma 

BBA LLB (3^rd year)

anshusharma6795@gmail.com

Introduction to the Citizenship Amendment Act (CAA)

The Citizenship Amendment Act (CAA) which came into force in India through the Parliament in December, 2019 aims at amending the Citizenship Act of 1955. The main idea of the CAA is to offer Indian citizenship to the religiously persecuted minorities of Pakistan, Bangladesh, and Afghanistan. Namely, it helps to gain citizenship for Indians from Pakistan, Afghanistan, or Bangladesh belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religion who arrived in India before December 31, 2014, if they had been persecuted in their home country because of their religion. The historical context is found in the division of India in 1947 which led to the change in the demography and made the followers of many religions insecure in the newly emerged Islamic countries like Pakistan and Bangladesh. The supporters of the Act claim that it resolves some of the oldest offers to human rights by providing shelter to particularized groups. Nevertheless, the CAA has been criticized and has initiated deep discussions regarding its ‘Constitutionality’ and many critics boarded by secular Constitution of India by discriminating against Muslims. Therefore, the Citizenship Amendment Act or CAA passed by the Parliament of India in December 2019 is aimed at altering the Citizenship Act of 1955. Particularly, it helps with citizenship for the Hindu, Sikh, Buddhist, Jain, Parsi, and Christian refugees, who came to India before the 31st of December 2014, and who suffered religious persecution in their countries of origin. 

Legislative Background and Passage

What has occurred was the recent passing of the Citizenship Amendment Act (CAA) for which there was massive legislative and political implications and was truly monumental as far as the Indian legislative landscape is concerned. The bill was initially presented in the Lok Sabha on the ninth of December in the year 2019 by Union Home Minister Amit Shah. This bill’s objective was to modify the Citizenship Act of 1955 to allow Hindus, Sikhs, Buddhists, Jains, Parsis and Christians minority communities from Afghanistan, Bangladesh and Pakistan to receive Indian citizenship. The concept behind the bill was to provide asylum to religious minorities, who are oppressed in these three neighbouring countries. The bill generated a lot of discussions and debates soon after its introduction among the Parliament members. 

When moving the bill on December 9-10, 2019 debates in the Lok Sabha, supporters of the bill also claimed that the bill is humanitarian intention is to protect minority religions from neighbouring nations, where they undergo persecution. They stressed such factors as history of the situation and the importance of helping such people find shelter. Nonetheless, the opposition members pointed many problems with it: the bill broke with a popular secular Indian Constitution and excluded Muslims based on religion, which might violate Article 14 that protected equality before law. Still, everyone objected and it was passed in the Lok Sabha on 10th December, 2019 with 311 affirmative for the bill and 80 negatives. 

The said bill was later referred to the Rajya Sabha where it undergoes other processes and possibly contemplated on December 11 2019. Similar arguments were given for the supporters include humanitarian interventions, while against, include discrimination and constitutional issues. The bill too has had its fair share of criticisms; nonetheless, the Rajya Sabha approved the same by 125 to 105. After the hailing by both the houses of Parliament, the bill was signed into law by President Ram Nath Kovind on 12th of December, 2019.

Constitutional Provisions Related to Citizenship

The articles of the Indian constitution concerning citizenship are Article 5 to Article 11. These articles laid down the principles of citizenship at the time of initiation of the Constitution in the year 1950. This is provided that each of the said person been born in India or if both of his/her parents were born in India or had lived in the territory of India for a period not less than five years before the commencement of this constitution. Likewise, Article 6 provides the status of a citizen to those persons who are migrating from Pakistan to India, while the Article 7 of the same order described the status of those people who migrated to Pakistan but return back to India. Indian citizens automatically, those living in foreign countries and enrolled as such by the Indian diplomatic authorities, are governed by Article 8. The immates of India who acquires the citizenship of another country voluntarily shall cease to be the Indian citizens by virtue of Section 9 of the Citizenship Act. Article 10 takes care that the citizenship shall continue for the persons as are deemed to citizen under Articles 5 to 8 and that also such citizen shall be subject to the laws passed by the parliament.

Citizenship rights are covered by Article 11 and this Article gave the Parliament the exclusive power to legislate about the same. The following authorities have been exercised to come up with different citizenship laws such as The citizenship act of 1955 which was modified because of the ever changing circumstances. A major exercise under Article 11 is the Citizenship (Amendment) Act (CAA), 2019 passed by the Indian government. The CAA grants an opportunity to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh, and Pakistan, who came to India on or before 31st December, 2014 but do not have this document. The Act has created controversy about its very nature of constitutionality upon the grounds of equality and secularity. Some people, therefore, defined the CAA as responding to the persecution of religious minorities across neighbours’ borders, satisfying the humanitarian requirement. However, they posit that the Act infringes article 14 in regard to non-discrimination since Muslims with the complainant’s characteristics were locked out.

Key Provisions of the CAA

In December, 2019, a new legislation, The Citizenship Amendment Act (CAA) became law and drastically changes the conditions for acquiring the Indian citizenship. As per CAA, those immigrants of Afghanistan, Bangladesh, and Pakistan belonging to Hindu, Sikh, Buddhist, Jain, Parsi, and Christian community can get Indian citizenship if they had entered India before December 31, 2014. The mentioned persons must have suffered religious intolerance or have had the feelings of intolerance in their home countries. More specifically, it shortens the period of residence in India to 5 years for those groups instead of 11 years, which comprise the path to the citizenship.

The CAA categorically targets only Muslim immigrants from these three countries, which has caused much uproar as well as accusations of racism on the basis of religion. The critics claim that exclusion of Muslims from the list of eligible religions infringes on the secularism as provided for in the Indian constitution. But the government stands up for the Act, explaining that the indicated countries are Muslim states where the listed persecuted minorities are really discriminated. 

Besides, the Act does not in any manner tamper with the rights of any Indians or citizen of India or any law relating to naturalisation, registration, or otherwise acquisition of Indian citizenship as contemplated under the Citizenship Act, 1955. In the same respect, the CAA has certain provisions of exclusion and exceptions in a similar view. It also does not cover regions it described as ‘explained’ regions which are protected by the Inner Line Permit under the Bengal Eastern Frontier Regulation, 1873 or the Sixth Schedule to the Constitution of India which include the tribal regions of Assam, Meghalaya, Mizoram, and Tripura. These exclusions are meant to ensure that indigenous people’s culture and social structure of these areas is not disrupted. 

Altogether, although the CAA was initiated with the objective of offering shelter and citizenship to the expelled religious minorities of the neighbouring nations, the inclusions and the criteria of exclusion have drawn intensive legal and moral issues of the compromisation of the constitutional principle of equality and non-discrimination.

Legal Challenges to the CAA

Controversial Citizenship Amendment Act (CAA) that came into force in December 2019 has seen litigations in several lower courts and the apex court of India. As of now more than 140 petitions have been presented mainly on the ground of challenging the constitutionality of the act. Cases were mainly based on the challenges relate to constitutional interpretations of fundamental rights such as Articles 14 , 15 , 21 and 25 of the constitution with regard to the CAA. Among the selected articles of the Constitution of India; Article 14 states that everyone shall be equal before the law, Article 15 states that no person can be discriminated on the basis of religion, Article 21 states that No person can be deprived of life and personal freedom, and Article 25 shall freely to profess, practice and propagate religion. 

The primary legal concerns regarding the CAA are its discriminative nature whereas, it offer a possibility to get the citizenship of India for non-Muslim minority from Pakistan, Bangladesh and Afghanistan but deny it to Muslims. The criticizers rate this as a form of discrimination as per the Article 14 equality clause and Article 15’s equal protection clause since religious discrimination is prohibited. Furthermore, the CAA is considered as violation of Article 15 which states the prohibition of discrimination on places of religious worship and some aspects of Article 21 which due to legal issues impacts the life and personal liberty of the excluded communities specifically Muslims. In addition, some petitions have pointed out that the CAA pose a threat to Article 25 freedoms of religion, by seemingly favouring one religion over the other. 

Further, the challengers argue that the CAA is anti-secular, as it goes against the India’s Constitution’s provisions that promise equal rights for all religions. Some of the exclusion criteria have been criticised for going against the basic structure doctrine which was initiated by the Supreme Court and according to which the aspects of the Constitution such as secularism cannot be changed by the Act or any means of legislation. These legal arguments argue that though the state has the power to devise laws for the citizenship, those laws have to respect the constitutional tenets of equality, non – discrimination and secularism. These various cases to seek the answer that the CAA complies with these constitutional provisions and its ongoing legal battle in the courts have democratic and constitutional outcomes for India.

Judicial Review and Interpretation

CAAs Constitutional legitimacy has been disputed, and the Indian judiciary has the responsibility of evaluating the CAA against the Constitution. Judicial review is enacted under Article 13 of the Indian Constitution whereby the Supreme Court and High Courts have powers to quash any law that is unconstitutional. Among the most important principles of judicial review are the doctrine of the basic constitutional structure, the equality of people before the law and legal protection of fundamental constitutional rights to prevent the legislation destabilizing the Constitution’s fundamental values. 

To the above effects, through numerous rulings, the Supreme Court of India has emphasized the importance of these principles. The basic structure doctrine was set of by the Supreme Court in Kesavananda Bharati case (1973) wherein it was held that some basic features of the Constitution cannot be amended. This has been very important in safeguarding the Constitution especially during the time of interferences. Regarding citizenship and Equality aspects of law and politics the following pivotal judgments have being completed by the Court. 

The Maneka Gandhi case (1978) stroke a new dimension to fresh meaning as to what constitutes violation of Article 21 of the Constitution of India which gives protection to ‘right to life and personal liberty’. The Court has also supported the aspect of equality provided under Article 14 of the constitution that provides that the state shall not deny to any person equality before the law and the equal protection of the law. 

This has been on grounds of the right to equality this is because CAA intends to give minorities from Pakistan, Bangladesh, and Afghanistan an easier path to Indian citizenship. Some have accused the act of violating the constitution’s neutrality and impartiality with regards to religion since it discriminates Muslims. Instead, the judiciary comes into play to determine or clarify if the CAA is or is not a constitutional act. The clarity challenge of the CAA as presented to the Supreme Court includes evaluating its conformity with Articles 14 and 21, among others in addition to not altering the Constitution’s basic framework. 

Therefore, the judiciary’s involvement of reviewing the constitutionality of the CAA is based on principles of judicial review, equal protection clause and civil liberties clause. Depending on how the Supreme Court has interpreted and has passed its verdict on the question, it would define the future debate on the constitutional status of the CAA and issues of citizenship and equality in India. 

Arguments in Favor of the CAA

The Citizenship Amendment Act (CAA) of 2019, passed by Indian government has been debated and justified on various bases. It is claimed by the government for the CAA that persecuted minorities like Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Pakistan, Bangladesh, and Afghanistan who have migrated to India before 31st December 2014 can get Indian citizenship under CAA easily. Some people for this they have suggested that is humanitarian, to protect the religious minorities that have been persecuted in these neighbouring Islamic states. People in support of the CAA have maintained that the act is legal because it responds to a certain historical and geophysical reality and does not persecute Indian Muslims or diminish their citizenship privileges. Some of them argue that the Act will be consistent with India’s tradition of providing shelter to the oppressed. Further, the review of other countries’ citizenship legislation proves that the majority of states, such as the United States and European countries, has provisions for the refugees or persecuted groups intermediate acceleration of receiving citizenship; thus, the CAA is to be discussed within the framework of asylum humanitarian legislation.

Arguments Against the CAA

Critics of the CAA claim that the act violates secularism because Muslims are deliberately left out from its protection with prejudice for their religion. This the critics argue falls short of the provisions of Article 14 of the constitution of India which provides for equality before the law and equal protection of the laws within the territory of India. They criticized the ruling Democratic Party saying that it endorses policies like the CAA, which violates the secular constitution since the latter grants privileged treatment to some religions. There are also apprehensions that when read with the proposed act of National Register of citizens this act may harmously impair and confine Muslims and reduce their political franchise and further create social and communal conflict. Moreover, the violation which has not been denied by the government is the infringement on the right to equality – critics explicitly stated that while other countries, including India, such a discrimination would be unlawful as people are to be treated equally regardless or religion, colour, etc. While the CAA discriminates the minority at large based on religion it again sets bad precedent and may be used for other changes in future legislation.

Impact on Fundamental Rights

Whether or not the Citizenship Amendment Act (CAA) is constitutional or not has been majorly discussed regarding the effect on the constitutional rights. Focus to this discussion is in Article 14 Right to Equality. This principle has been criticized with regards to the CAA as it alters citizenship based on religion, a factor that might lead to discrimination of Muslims and others not included in the Act. However, the proponents argue that the CAA is a sensible classification that seeks to offer asylum to minorities who are living in fear in particular neighboring countries which is a historical part of India to host persecuted persons.

Also, the CAA has been a cause of controversy concerning its compliance with Article 21 that enshrines Right to Life and Personal liberty. Learned scholars have lectured that given the fact that some religious groups have been left out of the pale of protection to their freedom of religion under the Act, the very fundamental principles of article 21 has been compromised on the principles of inclusiveness and non-discrimination. On the other hand, proponents of the Act state that this piece of legislation aims at affording protection to the incapacitated minorities suffering from religious intolerance which is in accordance with the principles of liberalism enshrined in Article 21.

Critiques have been leveled by saying that the Article 25 of the India Constitution that protects Freedom of Religion, the CAA with an attempt to connect the Indian citizenship with religious identity, pass the potential of endangering the secular structure of the country. The questioners have noted that showing favor to certain religions in the grant of citizenship may create an impression of partiality by state in the mobilization of religions contrary to the doctrine of separation of religion and state enshrine in the constitution. 

Advocates, however, argue that the CAA in no way violates the rights of any people of faith or any organisation, but rather tackles a human rights issue by offering shelter to the oppressed minorities. Thus, again, despite the declared intention to give shelter to persecuted peoples, the application of the CAA has an array of constitutional issues as to equality, liberty, and secularism. These issues have been taken before the Supreme Court of India as a way of underlining the importance of the process of judicial review in the implementation and enforcement of constitutionalism for adherent to constitutionalism and respect of the rule of law; especially in relation to any legislative enactment ranging from the CAA to any other law or measure that may have been put in place.

Federalism and the CAA

The CAA 2019 led to a lot of consultation and stirred many constitutional issues especially the issue of federal structure of India. The CAA aims to provide Indian citizenship to refugees from the three neighboring countries who are non-Muslims and arrived in India before December 2015. As such this legislation will have impact on federalism since it delivers the prospect of eroding the power of state governments on issues of citizenship and immigration, which are usually within the purview of state governments due to the federal structure of the Constitution.

The coordination and implementation of the CAA especially in the issue of identification of beneficiaries termed and recognized by the state governments as deserving have always been important but crucial. However, several states particularly those with non-BJP government have raised concerns and, in some cases, oppose the Act. This has been criticized from the ground that they feel it discriminates in as much as it will favor some selected religious groupings at the detriment of others something it absolutely opposes the principle of secularity of government as provided in the Constitution. Some of the states like Kerala and West Bengal have gone to pass house resolutions against the CAA and protesting against the law which they deemed unconstitutional.

These are some of the ways through which the Central and state governments have reacted concerning the CAA. Till date, legislation on matters to do with citizenship fall under the Union List (List I of the Seventh Schedule of the Constitution), while the state governments contend that the Act violates the Tenth Schedule of the Constitution regarding the powers of the state legislatures in matters of citizenship and immigration in their respective regions. This has resulted in legal battles and political issues, thus pointing out the Centre-state relations at the federal level in India.
Words and deeds of different state governments have also contributed towards these tensions. CAA and especially its companion NRC has been opposed in some states for its presumed effects on social order and constitutional provisions. Also, there have been specific examples where state governments CEOs have held press conferences to announce that those states would not extend support to the central government to implement the CAA further highlighting political and constitutional crisis.

Thus, in the context of the CAA, crucial questions have been posed and major controversies have emerged regarding the core principles of the Indian federalism and constitutional legitimacy. CAA, the position of state governments in its implementation along with the clash of the central and state governments, and the involvement of various states elaborated the decentralized legislative power along with the constitutional and political structure present in the Indian federal system. These dynamics persist in the debates on the CAA and the associated legal battles along with discussions on citizenship, secularism, and the structure of the Indian federation.

Conclusion 

The CAA of 2019 has triggered massive legal and constitutional controversies in India through a regime called as the Citizenship Amendment Act providing citizenship to the persecuted refugees of the three neighbouring countries immigrated to India only if they are non-Muslims. Therefore, to some extent, granting citizenship based on religion other than Muslims, when the Act does not claim to be a religious one but rather based on the constitution of India and its standing laws, is quite questionable under article 14, 15, 21 and Article 25 of Indian constitution regarding equality and secularism. Parliament conducted thorough debates and received a lot of opposition from the public with regard to the legislation. While its proponents state that the law targets vanquished populations targeted by oppression, opposition calls for eradicating the nation’s secular character.

The SC is examining when the constitution of the CAA violates fundamental principles and its judicial review, along with the balancing of its provisions with the basic structure doctrine. The facts and circumstances of these legal cases will continue to shape the citizenship rights in India and the question of fundamental rights. Besides, the Act has aggravated the Centre-State relations as many state governments are against it and the federal structure of India is quite layered. And so, the CAA continues to be a burning question which poses the fundamental question related to India’s Constitution and the guardianship of these principles by the judiciary