Author: Kanak Nigam, Student at Jindal Global Law School
The Citizenship Amendment Act passed recently by the Indian Parliament and the associated activity for National Register of Citizens is proving out to be a historical milestone but with a perceived blot on the social fabric. The chorus of chaos at certain segment of political and social forums around that has given rise to a seemingly unabated debate and deliberations questioning the constitutionality of the aforementioned. The political implications of the CAA and NRC is at the core of the rage and riots that followed the formulation of the act. The propagation of communal sentiments against the Government of being bias against specific religion evidently aided the forthcoming accusations and activities of disruptions and disharmony. This paper aims to highlight the misinterpretations and misconceptions that led to the said chaos and provide backed up arguments in favor of the constitutionality of the act that got established within the legal framework under Indian sovereign.
Mankind has done advancement from savagery to civilization by efficient and effective co-existence however constant evolution and maintenance of order and peace is essential for the said co-existence. Effective implementation of the ‘law and order’ in a society renders evolution and ensures harmony as it is the driving force towards every desired form of a society. Inequality with regards to religion, class, caste and color has been inherent to the Indian society. However, with the constitutional amendments and various legal and societal developments, the surge of ‘equity and equality’ notions began prevailing. It is these progressive and positive notions that can be said to have potentially given rise to the protests across the nation opposing the Citizenship Amendment Act and the National Register of Citizens.
Citizenship of India and its requirements have been mentioned in Part II of the Indian Constitution. Sections 5 to 11 in specific list out the various means of acquiring, losing and the rights that come along with the Indian Citizenship. Section 5 lists out the various ways to acquire Indian citizenship at the commencement of the constitution, by means of being born in Indian territory or having parents born in the territory or being a resident of the Indian territory for more than 11 years. However in 2019 the citizenship amendment bill was passed which reduced these from 11 years to 5 years of stay. Further Article 6 of the Indian constitution gives citizenship rights to certain people who have migrated to India from Pakistan. However, the country-wise list provided points out that there were over 13,500 illegal immigrants from Afghanistan and about 7,700 from Pakistan in 2009. In attempt to curb the issue of illegal migrants while sharing a sense of humanity with them the government introduced the citizenship amendment bill which is passed in 2019.
WHAT IS CAA?
The Citizenship Amendment Act, in its essence attempts at providing citizenship status to the religiously persecuted from Pakistan, Bangladesh and Afghanistan, seeking refuge in India. This exception is granted to people belonging to the Hindu, Sikh, Buddhists, Parsi, Jain or Christian communities. These individuals should have entered the Indian territory on or before 31st December 2014 so as to be eligible for such exception. The rationale behind including the aforementioned nations in the Act is the fact that these nations were integrally a part of undivided India, before partition. This Bill was passed by the current ruling party of Bhartiya Janta Party, which, due to its politically backing of the Rashtriya Swayamsevak Sangh (RSS), has a reputation of having a religious bias towards “Hindus”. “The RSS presents itself as a cultural, not a political, organization that nevertheless advocates a Hindu nationalistic agenda under the banner of hindutva, or ‘Hindu-ness’. The reputation and recognition of the political party in power of being anti-Muslims drove the general public to feel the need to violently revolt and protest against the Bill merely due to the absence of the ‘Muslim’ community from the list of communities eligible for the exception. The propagation of this sentiments by certain political segments deliberately without attempting to appreciate the actual reasoning and rationale behind such exclusion. The reasons and justifications have been mentioned in the Bill that was well debated in both the houses of parliament with explanation of the provisions defined therein . There are various arguments raised by the section of society that palpably revolted the Bill. The above mentioned feelings of communal bias as attributed to the ruling party is primary reason for the opposing groups for ‘declaring’ the Bill as unconstitutional as it supposedly violated article 14 of the Indian Constitution. The explanation for the argument is with utmost clarity as the Act explicitly is for the ‘minority’ communities of the nations and Muslims are a clear majority in these countries. Hundreds of Muslims migrating from these three countries have been granted Indian citizenship during the last few years. If found eligible, all such future migrants shall also get Indian citizenship irrespective their numbers or religion. In 2014, after the settlement of Indo-Bangladesh boundary issue 14,864 Bangladeshi were given the Indian citizenship when their enclaves were incorporated into the territory of India. Thousands of these foreigners were Muslims. The second argument is that, given the reasoning of including Bangladesh, Afghanistan and Pakistan being that they were a part of undivided India, exclusion of countries like Nepal, Myanmar, Sri Lanka, Bhutan seemed unreasonable. However none of the other nations have a declared state religion which is “Muslim” in case of the aforementioned three nations.
If we attempt to look for similarities across the globe, the Lautenberg amendment, Public Law 101-167, in the United States of America becomes evident. ‘This amendment provides special treatment to people from historically persecuted groups without requiring them to show that they had been singled out, that is, the members of these groups would not have to prove persecution in their individual case. The amendment clearly specifies “Jews, Evangelical Christians, Ukranian Catholics or Ukranian Orthodox” who are the nationals from the former Soviet Union, Estonia, Latvia or Lithuania.’ The major difference between the citizenship amendment act and the Lautenberg Amendment is the fact that CAA only concern itself with upper situated minorities already living in India. Therefore, as opposed to prevalent misunderstanding the CAA would not necessarily disrupt international relations between Pakistan, Afghanistan and Bangladesh since it does not necessarily attract people living in those countries but instead provides citizenship to people already living in India since before 31st December 2014. Thus, the motive behind the amendment is to curb the issue of illegal migrants, provide structured approach to identify Indian citizens and not to create political conflicts with the neighbouring governments.
However, the Act does remain silent on a few aspects considering the provisions in the original Citizenship act. One of them is the concept of dual citizenship which remains. Article 9 of the Indian constitution (ARTICLE 9) states that when a person voluntarily acquires citizenship of any foreign state, he ceases to be an Indian citizen. Therefore, with this amendment, the persecuted people, belonging to Pakistan, Bangladesh or Afghanistan who are being given the Indian Citizenship cannot be an addition to the current citizenship that they hold, by law. Therefore, this is issue holds no merit since none of the three nations permit dual citizenships either. As per Pakistani Citizenship laws, a person is permitted dual citizenships with 19 countries across the globe – United Kingdom, France, Italy, Belgium, Iceland, Australia, New Zealand, Canada, Finland, Denmark, Switzerland, United States of America, Sweden, Netherland, Ireland, Bahrain, Egypt, Syria and Jordan. Evidently, India is not a part pf their dual nationality agreement. Afghanistan and Bangladesh constitutions strictly prohibit the existence of dual citizenships for their citizens. Therefore, since none of the countries permit dual citizenships with India, the person effectively loses their initial citizenship as soon as they apply for the Indian Citizenship. Though the act is silent on the issue but Citizenship Amendment act does not necessarily conflict with the provision on dual citizenship in India.
Another aspect that the Citizenship Amendment Act remains mum on, is the provision of Domicile of the person being provided citizenship under the Act. Once the individual qualifies under the amended act and acquires citizenship, he/she has the right to equality with natural citizens of the country. As on date, the state wise domicile certificate allows individuals to seek reservations or attain preference for getting admissions in academic institutions or employment opportunities besides beneficial schemes of the Government, State or Central. Although the notion which lies behind the concept of domicile is of “permanent residence” or a “permanent home”, yet domicile is primarily a legal concept for the purposes of determining what is the “personal law” applicable to an individual. In the absence of clear guidelines on such matters, there is finite possibility of disputes and grievances getting raised.
The Government may do well in formulating a policy and protocol towards review of the secondary aspects and the side-implication of implementation of the amended Act to address the concerns and enhance the underlined spirit of the citizen charter.
NATIONAL REGISTER OF CITIZENS
While talking about the Citizenship Amendment Act, the mention of the National Register of Citizens becomes imperative. NRC was initially released for the first time after the 1951 Census and have not be updated until recently “. As evident from the name, the NRC is a register of the legal citizens of a country as per the Citizenship Act 1955. Such a record was only maintained for the State of Assam until recently when the Home Minister, Amit Shah, declared that the government plans on extending the register throughout the nation. The havoc around the implementation of the NRC remains so due to the assumed affiliation of it with the CAA. The NRC is merely a register to ensure the count of legal citizens and identify the illegal immigrants in the country. A prevalent argument being raised is the concern about the socially and economically backward classes lacking proper documents to prove their citizenship. The government has provided a clarification that, citizenship can be proved by submitting any documents related to date of birth and place of birth. However a decision is yet to be taken on such accepted documents. These are expected to include voter ID cards, passports, Aadhar, licences, insurance papers, birth certificates, school leaving certificates, documents relating to land or home or other similar documents issued by government officials. The list is likely to include more documents so that no Indian citizen has to suffer unnecessarily. In extreme cases of the person possessing no relevant documents, the authorities will allow that person to bring a witness and other evidence and community verification as well. Another concern that is shared across the nation is the latent connection between NRC and CAA whereas, factually there is no such correlation. CAA is a separate law and NRC is a separate process. The CAA has come into force nationwide after this passage from parliament while the NRC rules and procedures for the country are yet to be decided. Therefore, NRC is merely an process to account for the citizens of the country while attempting at identifying the illegal migrants and has no association with religion, caste or any such societal classification.
CAA and NRC have been subjected to a massive criticism due to evident misconceptions. The resent is more due to lack of awareness and political motivation. CAA being considered unlawful, despite it being lawfully passed by both the houses of the parliament and President, in itself showcases the deep rooted political prejudice and oblivious opinions. To quell the concerns of those on the opposite benches, Home Minister has categorically said more than once that the CAA will not take away citizenship from anyone, it is aimed at awarding the citizenship instead. The CAA and NRC in no way can be seen as detrimental to country’s future, be it economic or social. Each citizen entering the nation is an asset and not a liability. A willful government would create an environment and ecosystem to ensure a positive contribution from every citizen and to harness their skillsets and resourcefulness. By this act, Government has initiated a process of structured approach towards the management of life and livelihood which is a bigger subject of being responsible towards mankind and human affairs – formalisation of citizenship becomes just a process from that view point. India thus, by this Citizenship Amendment Act 2019, has shown the world of its human face and embracing hands for the mankind as a whole with a sense of ownership.
 Hindustan Times, ‘More Illegal Immigrants From Afghanistan Than Pakistan’ (2011) https://web.archive.org/web/20130103112835/http://www.hindustantimes.com/India-news/NewDelhi/More-illegal-immigrants-from-Afghanistan-than-Pakistan/Article1-769063.aspx accessed 4 June 2021.
 Britannica, ‘Rashtriya Swayamsevak Sangh’ (2009) https://www.britannica.com/topic/Rashtriya-Swayamsevak-Sangh accessed 4 June 2021.
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 Yajnaseni, ‘CAA Vs USA’S Lautenberg Amendment: How US Provides Special Treatment To Persecuted Jews, Christians’  Swarajya https://swarajyamag.com/news-brief/caa-vs-usas-lautenberg-amendment-how-us-provides-special-treatment-to-persecuted-jews-christians accessed 2 June 2021.
 ‘Dual Citizenship Report’ (2021) https://www.dualcitizenshipreport.org/dual-citizenship/pakistan/ accessed 2 June 2021.
 Sankalp Udgata, ‘Reservation On The Basis Of State Domicile: A Practice Unfair To People And Unexpected Of Governments’ https://www.scconline.com/blog/post/2020/07/15/reservation-on-the-basis-of-state-domicile-a-practice-unfair-to-people-and-unexpected-of-governments/ accessed 3 June 2021.
 Times of India, ‘What Is NRC(National Register Of Citizens): Documents Required’ (2019) https://timesofindia.indiatimes.com/india/what-is-nrc-national-register-of-citizens-documents-required/articleshow/72922238.cms accessed 3 June 2021.
 (n7) What is NRC