This article titled CAA 2019: A Religion-based pathway to Indian Citizenship is written byKamaljot Kaur.
Table of Contents
Introduction
The Citizenship Amendment Act was introduced by the Indian Government to provide citizenship for Hindus, Buddhists, Christians, Parsis, Jains and Sikhs, from Bangladesh, Pakistan and Afghanistan. It can be noted that Muslims, Jews and members of other faiths are not included in the new amendment. The introduction
of this new law only helps to solidify the ongoing marginalisation faced by religious minorities in India. Violence against religious groups, particularly Muslims, has been a continual issue in India, and through this bill the country’s primarily Hindu Government looks to further this agenda. According to the Citizenship Act of 1955, A person must have resided in India(or been in the service of Central Government) for at least 11 years to be eligible for citizenship. The Amendment Act reduces that period to five years for all the migrants from these three countries belonging to these six religious Communities. Inserts 32 Dec 2014, as the cut-off date for the members of the Hindus, Buddhists, Christians, Parsis and Sikhs communities from Pakistan, Bangladesh and Afghanistan to be eligible to get Indian Citizenship. The Act does not apply to areas under the Sixth Schedule of the Indian Constitution. These areas, located in Assam, Meghalaya, Tripura, and Mizoram, are autonomous tribal-dominated regions. The Act also excludes states with the inner-line permit regime, such as Arunachal Pradesh, Nagaland, and Mizoram.
CAA enunciates two classifications
| Religion-specific classification | Country-specific classification |
| It treats a religious denomination as a whole as a distinct group or class: it amends Section 2(1)(b) of the Citizenship Act by conferring discretion upon the Union Government to exclude Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the definition of ‘illegal immigrants’, thereby prioritizing these religious communities over others. | It is limiting the scope of acquiring citizenship to immigrants belonging to the enumerated minority communities from Afghanistan, Pakistan and Bangladesh. |
Legal Challenges
- The Act is Unconstitutional
The law was challenged before the Supreme Court under Article 32 of the Constitution.
The challenge rests primarily because the law violates Article 14 of the Constitution which guarantees that no person shall be denied the right to equality before the law or equal protection of the law in the territory of India.
- The Act is Discriminatory
Generally speaking, citizenship by “registration” was meant for people of Indian origin, the spouses or children of Indian citizens, and, for a while, the citizens of Commonwealth countries. Naturalization provided a path to citizenship for those with absolutely no ancestral connection to India. If India acquires any foreign territory, the central government can notify persons connected with that territory as citizens of India. Importantly, by virtue of the 2004 amendment, an “illegal migrant” cannot seek citizenship by registration or naturalization. An “illegal migrant” is a foreigner who enters India illegally, i.e., without a valid travel document. The CAA now carves out an exception for the members of some religious communities from Pakistan, Bangladesh or Afghanistan who entered India illegally before 31 December 2014 fearing religious persecution, and enables them to obtain citizenship by registration or naturalization despite their illegal entry into India.
- It is AntiMuslim
Those challenging the law argue that if protecting persecuted minorities is seemingly the objective of the law, then the exclusion of some countries and using religion as a yardstick may fall foul of the test.
- Against the basic structure of the Constitution
Granting citizenship on the grounds of religion is seen to be against the secular nature of the Constitution which has been recognised as part of the basic structure that cannot be altered by Parliament.
- Absence of Mechanism
There is currently no designated authority or a system in place to scrutinise if the evidence of religious persecution presented by migrants is valid or not.
- Scope for Misuse
The Act can be misused by those who had come to India on tourist visas and overstayed in the country, if they are from the protected religious groups and the specific countries mentioned in the legislation then when law enforcement agencies nab such migrants for staying back in India even after their visa has expired, they can simply say that they faced religious persecution in their countries, without producing any documentary evidence to the effect.
- Transgenders and orphans
When the Citizenship Act was enacted in 1955, it created a path to citizenship by birth. Under it, any person born in India after the Constitution came into force(26 January 1950), was considered an Indian citizen, regardless of whether or not his parents were illegal immigrants. We have seen that this changed in 2004. That year, Parliament amended the Citizenship Act, 1955, and did away with citizenship by birth from 1 July 1987. Those born after that date but before 3 December 2004 had to prove that at least one of their parents was an Indian citizen. Those born after 3 December 2004 had to prove either that both their parents were Indian citizens or that one was an Indian citizen and the other was not an illegal migrant24. This is difficult for many to do. For members of Indian’s transgender community, who are abandoned by their parents at birth for them it will be very difficult to prove their own birth or the birth of their parents in India. The same goes for orphans it will be very difficult for them to prove their own birth or the citizenship of their parents whom they never knew.
- Linking of NRC and CAA
The linking of the NRC and the CAA,2019 to argue that people belonging to the 6 communities the Act mentions will be given priority over Muslims if both stand excluded as a result of the implementation of a nationwide NRC is troublesome. The CAA grants citizenship to persons belonging to communities in minority in Pakistan, Bangladesh and Afghanistan who came to India on or before December 31, 2014. Thus, the Act is not wide enough to include in its ambit all persons belonging to these communities, irrespective of where they come from and the date on which they started residing in India.
- Not Applicable to certain areas
The Act is not applicable to areas under the Sixth Schedule of the Indian Constitution. These areas, located in Assam, Meghalaya, Tripura, and Mizoram, are autonomous tribal-dominated regions. The Act also excludes states with the inner-line permit regime, such as Arunachal Pradesh, Nagaland, and Mizoram. These regions have a significant tribal population and are sparsely populated. Critics fear that an influx of immigrants, regardless of their religion, could disrupt the region’s culture and voting patterns.
Effects of CAA
1.CAA Will Work in Conjunction with the National Register of Citizens
The passage of the CAA has come at a time where the government of India is trying to implement a nationwide scheme which requires that every Indian citizen have proof of their citizenship. Known as the National Register of Citizens (NRC), this act was a 2003 amendment to the Citizenship Act, 1950 of the Constitution. The NRC upholds that if a person cannot provide for the valid documents proving his or her identity, then that person will be deported out of the country or detained.Although the Indian government is working to execute the NRC throughout India in 2020, the NRC has already been executed in the Indian state of Assam. In 2019, the Indian government rendered nearly two million people in Assam stateless as they did not have the required identification documents. A large number of those deemed stateless were 81 Muslims but the Indian government argues Hindus were also rendered stateless as well. The proponents of the CAA argue that the act will help the native people of Assam to remain the majority ethnic group. The government of India expressed that there is a very high interest in keeping the ethnic Assamese the majority population. However, the effect of the NRC in Assam against the Muslim community is what many believe is the true reason the CAA was passed so promptly. The reason is that the Hindus declared illegal by the NRC along with the Muslims will be able to gain Indian citizenship through the CAA, unlike the Muslims in Assam rendered stateless. Therefore, the Hindus will not be subjected to deportation or detention. The NRC proceedings in Assam have ignited already ongoing tensions among the Muslim and Hindu communities as the CAA and NRC opponents see the two laws to be a strategic devise by the Indian government to expel and force Muslims out of India.
- CAA Will Give Rise to Already Increasing Religious Tensions
It is inevitable that the government’s position on the preference of certain religions over one will give rise to religious tension. The effect of the CAA will give rise not only to Islamophobia across India but also lead to the marginalization of Muslims in India. Unfortunately, it is likely probability that the CAA may also give rise to extremism even from Muslims. Proponents of the CAA reason, “If the government of a welfare state segregates people on any ground and then extends equal rights to all members of the segregated group, then that arrangement is valid under Article 14.In theory, this reasoning may be true, however, when a government segregates on the basis of religion, as done here in the CAA, protests and civil unrest is also predicted, which has been true in India already. The CAA has resulted in many mass protests and incidents of violence all across India.
Conclusion
The Citizenship(Amendment) Act, 2019, legitimises 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. There are various solutions that can be taken in order to uphold the secular values of the Indian Constitution, first of which is to immediately repeal the CAA all together. It will be a powerful solution in order to abide under only the Indian Constitution but with the International Human Rights Law. The United Nations responded to the passage of the CAA by stating that the CAA will have discriminatory effects on naturalization. India’s signage of the UN treaty for 95 Refugees would also be a good faith effort by the country to take measures that would abide by international customary norms affecting refugees. Additionally, India would also benefit from legislating a standardized law for the purpose for refugees and the asylum process to avoid discretionary actions.
It would rather be unsophisticated for one to think that either the repeal of the CAA or the implementation of a standard refugee law in India would be a solution to the issues that India is facing. There exists a deeper issue than the one found in the provisions of CAA and that is the discrimination of a religious minority in order to create an ideal Indian identity and home. The CAA was born out of a rising Hindu nationalistic movement. Even if India were to repeal the CAA, it would not be the only step to placate tensions amongst the religious communities in India or calm the Hindu nationalism movement. Frankly, regarding the issue of refugees, like any other foreign government, the Indian government has full authority to regulate the asylum or citizenship process as it sees fit. India also has no legal or moral obligation to welcome every single visitor, refugee or tourist for the matter. Also, it must be acknowledged that not only does India have problems with civil and religious issues but the country faces the issue of extreme poverty and overpopulation.96 Therefore, it is quite understandable that India would want to limit immigration to the country.
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The purpose of the CAA was to permit groups of religiously persecuted migrants escape Muslim countries. As, India is secular, in theory at least, its government must look to the international community for their opinion on the CAA. The international community have expressed their concern about the CAA as a discriminatory law. Support from the international 97 community may pressure India to review its policy, however, more demand is needed to effect any meaningful change. However, unfortunately, international response to the CAA has been restrained from world leaders; the reasoning may be linked to interest in maintaining beneficial ties with India for economic, education, trade, and counterterrorism purposes.
Only time will tell the actual short- and long-term effects of the CAA for Muslims in India and India itself. Still, for the world’s largest democracy, the very passage of the CAA is truly a blemish on the country’s secular promise. It is a loss of credibility of the Indian government. Permitting the possibility of India becoming a less secular and a more theocratic state; the very reason it passed the CAA. Any country that expressly prefers one group over 100 the other gives rise to an arbitrary and discretionary legislator that can fashion a state unsafe for all of its citizens. Therefore, it is best that a holistic approach be adapted to combat the Anti-Muslim or anti-minority sentiments in India which is weakening the Indian promise of secularism. Indeed, one of the most effective solution will consist of Indians uniting under their Constitution and law to fight against the discriminatory provisions and effect of the CAA.