THE CITIZENSHIP (AMENDMENT) ACT, 2019

Abstract

This paper makes an attempt to study and critically analyse the Citizenship (Amendment) Act 2019. The main provisions of the act have been examined. Article 14 and the preamble of the constitution are studied to infer if the act is violative of the constitution. The basis of selecting a few religious communities and countries over others is looked into. Assumptions have been made as to what could have been the reasons for this selection. CAA and NRC are often linked together and even the home minister has explicitly stated one will follow the other. Apprehensions are bound to arise and protests and dissent against the law seems natural in such a situation of ambiguity. All protests despite having the same aim i.e. to repeal the CAA are motivated by different reasons. For example, the people of East India are protesting for protecting their demographic identities which is endangered by this legislation, South Indian Tamils are afraid of being detained in centres built for the purpose. The government has not clearly stated as to how this exercise of Country-wide NRC will be conducted. Irrespective of the method, one thing is sure that the economic impact of the exercise will affect the county. Not only common man but several State Governments have opposed the law. The act is facing criticism from all over the world. It’s being termed as ‘arbitrary’ and the start of a ‘fascist regime’ based on the motive of converting India into a Hindu Rashtra. Though Supreme Court asked the government to respond regarding the controversial act, Centre’s reply seems to be indistinct.

Keywords: Article 14, Preamble, 6 religious communities (Hindu Parsi Sikh Christian Jain and Buddhist) and 3 countries (Bangladesh Pakistan Afghanistan), Country-wide NRC, Nation-wide protests, Demographic Identities, Detention Centres, Arbitrary Fascist Regime, Hindu Rashtra.

INTRODUCTION

            Citizenship amendment bill was introduced in Lok Sabha by Mr. Amit Shah, Minister of Home Affairs. It was passed in Lok Sabha and Rajya Sabha on 10th and 11th December 2019 respectively. The bill received the assent of the President on 12th December 2019 and subsequently came to be known as the Citizenship Amendment Act 2019 (CAA). It became effective from 10th January 2020, as notified in the official gazette of India.

            CAA, 2019 amended The Citizenship Act, 1955, which lays down the provisions and rules regarding who can be a citizen of India.

Salient features of this Act are as follows:[1]

  • A proviso has been inserted in clause (b) sub-section (1) of section 2 of the principal act. It provides that a person from Hindu, Sikh, Buddhist, Jain, Parsi or Christian community who has come from neighbouring countries of Afghanistan, Bangladesh or Pakistan into India on or before 31st December 2014 shall NOT BE TREATED AS ILLEGAL MIGRANTS. (Section 2 of CAA)
  • A new section has been inserted – Section 6(b), according to which the central government or any other authorized authority may grant a ‘certificate of registration’ or ‘certificate of naturalization’ to a person mention in above stated provision. [Section 3 (1)]
  • Such a person who is granted the certificate of naturalization or registration under section 6 (b) shall be deemed to be a citizen of India from the date of his entry into Indian subcontinent. [Section3 (2)]
  • From the date on which this act shall come into effect, persons against whom proceedings are pending under this section regarding the matter of illegal migration or citizenship shall stand abated. [Section 3 (3)]
  • Section 6(b) shall not extend to the tribal areas of Assam, Meghalaya, Mizoram or Tripura as specified in the 6th Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873. [Section 3 (4)]
  • A proviso shall be added to clause (d) of 3rd schedule, which provides for qualifications for naturalisation. As per this proviso, for the 6 communities (Hindu, Sikh, Buddhist, Jain, Parsi, Christian) from Afghanistan, Pakistan, Bangladesh, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”. (Section 6)
  • Apart from this, the bill added one more ground to the existing provisions for cancellation of registration of Overseas Citizens of India (OCI) in the principal Act. Those migrants who are of Indian origin or who have Indian spouse can register as OCI under the principal Act. OCI gets a lot of benefit with respect to education, travel, and work. Under this provision, the registration will be cancelled if an OCI violated any law of India.

OBJECTIVES

  • Determining the constitutional validity of the act;
  • To identify the basis of selection of specific communities from specific countries;
  • Examining economic, social and political impact;
  • To get to the bottom of the reason for protests and understanding the pattern if any;
  • To determine whether there is a co relation between CAA, NRC (National Register of Citizens) and NPR (National Population Register);
  • To analyse supreme court’s stand on the issue;
  • To study states’ response in accordance with NRC.

HYPOTHESIS

            Citizenship Amendment Act 2019 is inconsistent with the provisions of the Indian Constitution and is divisive and discriminatory in nature.

METHODOLOGY

            Research aim: The research aims to provide information in an explanatory manner i.e. it explains the causes and consequences of a well-defined problem and precise conclusions are sought for an established issue, here, Citizenship (Amendment) Act 2019.

The paper is written using basic research technique which aims to develop knowledge, theories and predictions.

            Research data:  Secondary data (data already collected by someone else) has been used for the purpose of this paper. Information was collected from a number of certified articles available online as well as online newspapers or e-newspapers. A lot of discussions and theories have been postulated regarding efficiency and effects of this act. All those arguments have been categorically represented and analyses are done.

            Qualitative as well as quantitative methods have been applied. To study the economic effects, the researcher had focused on numbers and statistics.

            Probability Samplings were used to generalize the findings and outcomes of NRC in Assam to the whole of India.

            The research is Cross sectional and data was gathered at a single point in time, the research question focused on understanding the current situation. A fixed research design was used as the subjects, scope of study, timescale, objectives were pre-determined by the author.

CONSTITUTIONAL VALIDITY

            The Preamble to the Constitution of India declares India as a Secular[2] nation. Secularism means State neutrality in the matters of religion; it means there is no official or sponsored religion of India. According to Supreme Court, Indian Secularism is distinct from Western conception and based on values of tolerance and equal respect for all communities. Indian conception is based on the philosophy of “Sarva Dharma Sambhava”. It means that State has no religion and shall treat all religions and religious groups equally. A step forward, it has also declared Secularism as the basic feature of Indian constitution in the famous Bommai Judgement[3].

            Article 11 confers power on the parliament to regulate the right of citizenship by law. Parliament has the authority to make laws regarding citizenship and to amend the same.

            Article 14 of the Indian Constitution provides for equality before law. It ensures that no person shall be denied equality before law or equal protection of laws by the State within Indian Territory.

            The expression ‘equality before the law’ is one of the three basic elements included in Dicey’s Doctrine of ‘Rule of law’, and is a declaration of equality amongst all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. Every person, irrespective of the rank or position he holds, is subject to the jurisdiction of the ordinary courts.

            The second expression, ‘the equal protection of the laws’, which is rather a corollary of the first expression, and is based on the last clause of the first section of the 14th amendment to the American constitution, directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination. It has been said that ‘the equal protection of the laws’ is a pledge of protection or guarantee of equal laws.

            Thus Article 14 uses two expressions to make the concept of equal treatment a binding principle of State action. Article 14 applies to all persons and is not limited to citizens of a state.[4]

 

ANALYSIS

            While the parliament is authorized to make laws on citizenship by Article 11, a specific obligation is placed on state under article 14 to ensure equality amongst all persons.

            Though Article 14 permits classification but class legislation conferring powers upon a particular class of person that are selected arbitrarily from amongst a larger number of people is forbidden.

            It is accepted that persons may be classified in groups and they may be treated differently if there is a reasonable basis for such difference. To decide where the govt. can use this classification, Supreme Court has developed a ‘test of reasonable classification’.[5] It requires three things:

  1. Legitimate state aim
  2. Classification should be based on ‘intelligible differentia’
  • Differentiation drawn has a rational nexus with the object that law sees to achieve

            CAA violates Article 14 because it tends to differentiate between different religious groups from specific countries without providing for legitimate state aim and does not make a reasonable classification.

            This law picks out religion as a form of persecution as particularly salient and deserving of protection which other forms are not given; that’s what strikes at the secular character of both the law and the constitution. Since secularism forms part of the basic structure, the act compromises even the basic structure of the constitution.

CENTRE’S RESPONSE[6]

            The Centre asserts that the selection of countries or certain religious communities pass the test of reasonable classification as under article 14. It has cited historic records in its affidavit to indicate that these minority communities from the three countries have faced persecution for long. India according to Centre is the sole rational and logically feasible place to seek shelter. It further says that classifying foreigners and selecting theocratic states with a state religion is a reasonable and rational classification and thus does not violate Article 14.

            The Apex Court in Public Service Tribunal Bar Association v. State of U.P.,[7] wherein, upholding the U.P. Public Services (tribunal) Act, 1976, as amended from time to time, challenged as violative of Articles 14 and 16 of the constitution, ruled that, while examining the challenge to the constitutionality of an enactment, it was imperative upon the courts to be conscious to start with the presumption regarding the constitutional validity of the legislation. The court should try to sustain its validity to the extent possible. Further, that the burden of proof is upon the shoulders of the incumbent who challenges it. [8]

            The secular character of Indian Constitution according to Centre is not compromised. It further argues that even though religion is the starting point of classification, it is not the sole basis. Indian Secularism is not irreligious but takes notice of all religions and promotes brotherhood between all.

SELECTION CRITERIA

            The government has argued that the act has an inclusive character and is a legislation to provide citizenship; it would not deprive anyone of their citizenship from any community or religion.

2.1 SELECTION OF SPECIFIC RELIGIONS

            Though the act does not mention Religious Persecution, it refers to Passport Orders and Foreigners Rules[9] which give a clear sense that the stated objective of the act is the assumption that minority communities in neighbouring countries that have a state religion are subjected to religious persecution and that gives them a specific claim to immunity and citizenship.

            Persecution can take many different forms, which is why refugee convention talks about a well-founded fear of persecution giving a ground to asylum claims. Persecution can be- social, caste, religion or gender based etc. But the centre specifically focused on the religious persecution while ignoring the rest.

            It is an inclusive law but tends to exclude communities who have faced similar problems, like the Rohingya in Myanmar and Ahmadiyya Muslims in Pakistan.

  • UN declared that the Rohingyas are one of the most persecuted groups in the entire world[10].
  • Pakistan’s Ahmadi community has faced severe persecution by the Pakistani government. Ahmadis face harassment, threats, employment termination, and social ostracizing[11]. More severely, Ahmadis are frequent victims of terrorism and incarceration most notably evidenced by the 1953 Lahore riots, 1974 Anti-Ahmadiyya riots and May 2010 attacks on Ahmadi mosques in Lahore. Over 250 members of the community have been killed in Pakistan by anti-Ahmadi terrorist groups.

            It cannot be a ground that a community constitutes a miniscule minority and therefore doesn’t deserve protection of their Fundamental Rights. Supreme Court has repeatedly held that however small the community, it is equally deserving of fundamental rights of the constitution.

2.2 SELECTION OF AFGHANISTAN, PAKISTAN AND AFGHANISTAN

            If the object is to protect the migrants of certain countries, then the objective of law will itself cease to be valid and will be arbitrary and fanciful.

  • If the object is assumed to be that people of neighbouring countries should be helped then why has the government not selected Sri Lanka, Myanmar or Tibet.
  • If the aim was to protect people from pre-partition India then Afghanistan should not have been included, rather Myanmar should have been a part since Burma was a part of British India up to mid-1930.
  • If the object was to protect people from countries with State religion, then Sri Lanka should also have been included since it is a Buddhist state.

CENTRE’S RESPONSE

            On exclusion of other persecuted groups like Ahmadiyyas, Shias, Baha’is, Hazaras, Jews, Atheists or Baloch Communities, the counter affidavit filed states that “intra religious persecutions or sectarian persecution or persecution due to non-recognition of particular sects to be within the fold of majority religion in the said countries, cannot be equated with the persecution of religious minorities admittedly following and practicing a different and completely distinct religion than the majority religion in particular neighbouring countries.”[12]

            It is further argued that inclusion of certain countries while exclusion of rest cannot be a subject-matter of judicial review as it is within the domain of legislative decision making and legislative wisdom. Under-inclusiveness cannot be questioned affirms the government.

 

 

PROTESTS

            As soon as the bill was passed, it sparked off protests throughout the country. The protests continued for months. Opposition Political parties played a very important role in mobilising people. While some protests remained peaceful, others turned violent resulting in mass destruction of public property and loss of lives too. The police were often blamed and criticised for manhandling the protestors. People used the social media platforms as well to express their dissent.  The protests weren’t only focused on CAA but also included Anti-NRC sentiment. College students were seen in the forefront. Women participation too played an important role (e.g. In Shaheen Bagh). Several Awards and Honours were returned. Mujtaba Hussain returned his Padma Shri claiming that Indian Democracy has reduced to “a joke”. Around 300 eminent personalities signed and issued an open statement against the CAA.

            The ruling party organised several marches showing support for the legislation. A Mobile Number was circulated so that people could give a missed call on it and show their support for CAA.

            While at some point almost every state and union territory was affected, a gist of some of the states’ protests has been discussed:

3.1 DELHI

            On 13th December protests erupted in Delhi’s Jamia Milia Islamia University and Uttar Pradesh’s AMU (Aligarh Muslim University). On 14th December protests began at Jantar Mantar. On midnight of 14th-15th December 2019 police cracked down on Jamia and AMU vandalising even the Library and the Mosque. On 15th December women protesters sat on an indefinite protest in Shaheen Bagh[13]. Two days’ later violence happened in Seelampur and Jaffrabad. Bhim Army Chief led protest at Jamia Masjid. Congress party held ‘Satyagraha for unity’ at Rajghat. Thousands protested in East Delhi’s Khureji.

3.2 PUNJAB

            Protests began in Malerkotta, Patiala and Ludhiana with Khalsa Aid’s support. Punjab University students took a leading role in the protests, and were backed by the Association of Democratic Rights.

3.3 WEST BENGAL

            The state witnessed violent protests as railways stations and public buses were attacked by the protestors. Protestor set fire to 5 trains in Murshidabad district, in Suti, railways tracks were also damaged. Chief Minister, Mamta Banerjee led an anti-CAA protest which was joined by thousands. When PM Modi visited Kolkata, hundreds of people stood in protest at the Kolkata Airport. On republic day, people of West Bengal formed a parallel 11 km long human chain from Shyambazar to Golpark in Kolkata.

3.4 BIHAR

            Communist parties in Bihar called a ‘Bandh’; it was supported by several small parties. Protesters blocked rail and road traffic. On 21st December, 2019, a “Bihar Bandh” was organized by the Rashtriya Janata Dal.

3.5 TAMIL NADU

            Tamil Nadu has given shelter to many Tamils from Sri Lanka. These Hindu Tamils from Sri Lanka are complaining against their exclusion from the Bill. Citizenship to only Hindus from Pakistan, Bangladesh and Afghanistan is being questioned. DMK leader Dayanidhi Maran questioned if Amit Shah’s leadership as home minister extends only to North India because of his indifferent attitude towards Tamil Nadu. Maran has asked about the government’s plan for the Tamils from Sri Lanka.

3.6 KERALA

            On 1st January, around half a million people assembled in peaceful rally to protest against the act. The Kerala government was the first one to challenge the CAA under Article 131 of the Constitution. On republic day the Left Democratic Front led by CPI organized a human chain. 6-7 million people had participated in the formation of the chain which extended to a distance of 620 km.

3.7 NORTH EAST

            The North East erupted as soon as the Citizenship (Amendment) Bill, 2019 was passed in both the houses of the parliament. The new law enables Indian citizenship for undocumented non-Muslim migrants from Bangladesh, Pakistan and Afghanistan. While many called the amendment “an attack on secularism”, in the North-East the issues are different. People here fear losing their native identity to a possible influx of refugees. The region saw widespread protest when the Bill was first introduced in January 2019. To prevent a similar flare-up, the Modi govt. made several concessions. It exempted all tribal areas covered under the 6th schedule from the Bill. It also exempted states like Arunachal Pradesh, Mizoram and much of Nagaland that comes under the Inner Line Permit rule. The government even extended the Inner Line Permit rule to Manipur and Dimapur district in Nagaland.

  • ASSAM has been the epicentre of protest. The reason is that only 7 out of 33 districts in the state will be exempted from the Bill. Large parts of Assam which are non-tribal areas will be affected by the Citizenship Bill. For years the Ahoms have feared that Bengali migrants will take over their resources and jobs. There is a long history to this. In 1836, the British made Bangla the official language of Assam. This remained in force for 37 years. When the Partition took place, a number of Bengali migrants came and settled in Assam. This created more resentment among the locals. After a long struggle the Assam Accord was signed in 1985. Under this, 1971 was set as the cut-off year for granting citizenship to illegal migrants in the state. With the CAA, the govt. has now extended the deadline for non-Muslim migrants to 31st December 2014. Protesting groups in Assam say that this is a clear violation of the Assam Accord and they are afraid that there will be an influx of refugees into the state. There’s another element to this: The NRC or National Register of Citizens.
  • MEGHALAYA also witnessed protests after the CAB was passed. Protesters burned the effigies of PM Modi, Amit Shah and Agatha Sangma of the ruling NPP who voted in favour of the CAB in the Lok Sabha. Meghalaya is protected under the 6th schedule except a small patch in Shillong. But there are fears that once Bangladeshi Hindus are given citizenship, they will easily be able to come and settle in Meghalaya which shares a long border with Bangladesh as well as Assam. There are now demands that even Meghalaya should be included in the ILP. To bring down tempers, the state has come up with the amended Meghalaya Residents Safety and Security Act.[14] The Act requires a visitor who wants to stay for more than 24hours in the state to fill an online application and get permission.
  • ARUNACHAL PRADESH has similar fears that such people would easily come via Assam and settle in the state.
  • Although NAGALAND[15] has remained comparatively peaceful, people are sceptical about the Act. A student leader said that the ILP hasn’t been able to control illegal immigration, so extending it to the entire state would not help much.
  • In TRIPURA too, where the tribal areas of the state were exempted from CAA, life was thrown out of gear. Protesters say that the Bill violates various treaties the govt. of India has signed with the people of Tripura over the years which include the one signed with ATTF (All Tripura Tiger Force) and the Instrument of accession.
  • In MIZORAM, a major concern is the presence of Chakma refugees who came from the Chittagong hill tract in Bangladesh. There are fears that if given citizenship Hindu Chakma refugees will affect the demography of the Christian majority state.

            The environment in the Northeast has always been volatile about its contested identities. CAA will only introduce new fault lines and deepen existing ones.[16]

            On India’s 71st Republic Day thousands turned up at an anti-CAA-NRC protest in US’ capital Washington DC. In Sydney, 60 Indians distributed flyers that had details of the CAA written down outside a Starbucks outlet. From the streets of Germany’s Munich to the campuses of Colombia University in New York and Tampere University in Finland to the neighbourhoods of Cape Town in South Africa, a small but vocal community of young liberals are standing up against what they feel goes against the very ethos of their homeland.

INTERNATIONAL COMMUNITY’s RESPONSE

            UN Secretary General, Antonio Guterres condemned violence used to control the protestors. Pakistan’s Prime Minister criticised CAA expressing his concern that such policies could create a refugee crisis in the subcontinent. US Congress think tank, Congressional Research Service expressed concerns that the CAA along with the NRC may affect the status of the Indian Muslim community. Kuwait National Assembly issued a statement calling the legislation abusive. EU resolution states that CAA marks ‘a dangerous shift ‘ in the way citizenship will be determined in India and is set to create the ‘largest statelessness crisis in the world’.[17]

LINKING CAA WITH NRC AND NPR

NRC stands for the National Register of Citizens.

            Its objective is to separate the legal Indian Citizens from undocumented migrants, so that once this identification is done, the foreigners can be deported. For this purpose, a record shall be prepared under NRC enlisting such persons.

            In 2004, Citizenship Amendment Act[18] had been passed under the leadership of Mr. Atal Bihari Vajpayee. The Act inserted Section 14A to the principal act. This section deals with the provisions regarding issuance of national identity cards. The Central Govt. has been authorised under this section to issue a national identity card to a registered citizen of India. It further confers powers on the Union Govt. to create a National Register of Indian Citizens. Union Govt. has also been enabled to set up a National Registration Authority for the purpose of creating such a Register.

            Assam is the first state where the NRC has been carried out. The Supreme Court passed an order in 2013, following which the process to update the register began in Assam. Around Thirty-Three million people were asked to prove their Citizenship. They had to establish their national identity as Indians prior to March 24, 1971.

            The updated final NRC was released on August 31, with over 1.9 million applicants failing to make it to the list, many of them are Hindus[19]. They will now be eligible to become citizens under the CAA. Since the NRC was a long-standing demand of Ahom groups, they see the CAA as a betrayal.

            Union Home Minister has explicitly stated that once CAA becomes effective, the exercise of NRC will come into play and it will be conducted for not just West Bengal but for entire nation.[20]

            NPR (national population register) is a register of residents of India in which demographic and biometric data of individuals living at the place of enumeration for six months or more is collected by the enumerator.

ANALYSIS

            Under CAA 2019 the six communities (Hindu, Muslims, Sikhs, Parsis, Jains and Christians) from Bangladesh, Afghanistan and Pakistan, will be able to apply for citizenship and would not be considered illegal migrants for the purpose of this act. Hence all such people shall be included in the NRC. But an illegal immigrant from other than these three countries or people coming from there but belong to Muslim community will be affected as they are not included in Citizenship Amendment Act. Govt. said that if a person’s name is not mentioned in the NRC, it would not amount to him/her being declared a foreigner. Those left out would be given the option of approaching foreigners’ tribunal and put forth their case. In case of loss, an individual shall have the option of approaching the High Court, as well as Supreme Court afterwards.

            Assam govt. has declared that no person shall be arrested till the foreigners’ tribunal declares him an illegal migrant.

            The NPR was planned to be prepared between April 2020 and September 2020, in order to be ready before the Census 2021. Ground work on NPR is underway in several states. Section 14A of the citizenship Act 1955 provides the legal basis for NPR preparation and links it with census and NRC. It says that the Registrar General India shall act as the National Registration Authority and also as the Registrar General of Citizen Registration. Point to be noted is that the Registrar General functions as the Census Commissioner of India.[21]

            This means if the government wants, at any point of time, the data collected for the NPR may be legally used for NRC.[22]

 

 

CENTRE’S RESPONSE[23]

            Any sovereign country needs to carry out the exercise of identifying citizens from non-citizens. Three categories of people are currently residing in India:

  1. Citizens
  2. Illegal Migrants
  3. Foreigners on valid visas.

            Union Govt. has the responsibility to identify and ascertain people living within the national boundaries without any proof of citizenship.  This responsibility can be inferred from a combined reading of Foreigners Act, The Passport (Entry into India) Act, 1920 and the 1955 Act.

            It is also denied by central govt. that excessive delegation of authority has been done upon the executive. Section 9 of Foreigners Act regarding the burden of proof of citizenship is defended citing the Sarabandana Sonowal decision of SC, which held that onus of proof lies on the individual to prove his/her citizenship.

            The centre also brings light on the fact that matters regarding absolute or unqualified powers of the Parliament cannot be challenged in Supreme Court by a Public Interest Litigation.

RESPONSE OF STATES

            Amidst widespread protests in the country regarding CAA and NRC, Chief Ministers of several states have expressed their reservation regarding implementing the two in their respective states.

            All India Trinamool Congress Party, currently running the West Bengal government, as reported by Press Trust of India, has ordered a stay on all NPR activities. Chief Ministers of Orissa and Andhra Pradesh have also declared that they will not implement NRC in their states. Congress-led Punjab government has passed a resolution to scrap CAA. Punjab became the second state to do so. Left- ruled Kerala was the first state to pass a resolution against CAA on December 31. On Jan 14 Kerala govt. filed a plea in Supreme Court challenging the constitutional validity of the act. The petition said that CAA violates right to equality under article 14 of the constitution. The Rajasthan Legislative Assembly, governed by the Indian National Congress, too passed a resolution asking the central government to repeal the CAA, making Rajasthan the third state to do so after Kerala and Punjab. Madhya Pradesh, Bihar and Telangana amongst others also followed.

ANALYSIS

            The Seventh Schedule of the Constitution divides the subjects on which the Centre and states can make laws under the Union, State and Concurrent lists.

            Citizenship, naturalization and aliens (foreigners) are enumerated as 17th item in the Union List. These subjects are exclusively mentioned in the First list which contains a total of 97 subjects. Thus in the case of NPR and NRC, too, state governments can move courts but not refuse to implement the centre’s directions.

            As per Article 365 of the Indian Constitution, the state governments cannot decline the implementation of any direction that is issued by the central government. They are bound to comply with and give effect to such directions from the Union government. In case they fail to do so, the president would be empowered under Art. 365 to declare a situation of state emergency in which the state government cannot be carried on in accordance with the provisions of this constitution. But nevertheless state governments can challenge such directions of the central government and can move the courts in this regard.

JUDICIAL PRONOUNCEMENTS

            Constitutional validity of CAA is questioned by several individuals who have filed petitions regarding the same in the court. Several Political leaders (Rashtriya Janata Dal leader Manoj Jha, Trinamool Congress MP Mahua Moitra, Congress leader Jairam Ramesh, AIMIM leader Asaduddin Owaisi), Law Students, NGO’s (Rihai Manch and Citizens against Hate), Students Unions (AASU and Jamiat Ulama-i-Hind), advocates (M L Sharma) have moved the Supreme Court challenging the act.

            While an ex parte stay on the operation of the act was not assented to by the Apex Court, it agreed to assess the constitutional validity of the same on 18.12.2019. A three judge bench, comprising of Justices S Abdul Nazeer and Sanjeev Khanna, led by S.A. Bobde (The Chief justice of India) was set up for hearing of a hundred and forty-four petitions challenging CAA on 22.01.2020.

            K.V. Vishwanathan, a senior advocate tended to the court, expressing that the foremost prompt concern was the clearing powers given to official specialists to brand individuals as ‘doubtful citizens’. Once this can be done, there are no rules to assist these individuals. It’ll lead to gerrymandering of appointive rolls. The concern is spread over both the larger part Hindus and the minorities as well. This fear has to be addressed. Responding to the concerns the CJI explained that laws like the CAA are not irreversible.

            A notice was given by the Court to the Union Government regarding the petitions. The court asked for the centre’s response within 4 weeks and declared that interim prayer for stay on CAA would be heard by a five-judge bench in the next hearing in February.

            On 3 March, 2020, the Office of the United Nations High Commissioner for Human Rights (OHCHR), filed an intervention application in the Supreme Court and asked to be made a party in a writ petition challenging the CAA, filed by Deb Mukherjee, a retired IFS officer.

CENTRE’S CLAIM

            The OHCHR Commissioner, Michelle Bachelet said that the “differentiations” drawn by the Act are not “sufficiently objective and reasonable”. However, the Ministry of External Affairs reacted to the move and said that the CAA is an “internal matter” of India and “no foreign party had any locus standi on issues pertaining to India’s sovereignty”.[24]

            Centre on 17th March conveyed to the Supreme Court that CAA, 2019 does not violate any fundamental right. A Hundred and twenty-nine-page long affidavit was submitted by the counsel representing the central government. The affidavit was a response to all the pleas questioning the legality of CAA. It was submitted by the defence that CAA is constitutionally valid as well as moral. It was further contended that the executive does not derive any arbitrary or excessive powers through the means of this legislation. It was claimed that the power to grant citizenship to the persecuted minorities of Pakistan, Afghanistan and Bangladesh would still be carried out in the manner as was provided under the law governing grant of citizenship.

            B C Joshi, Director in the Ministry of Home Affairs, filed the affidavit. The Centre clarified that it is filing a separate counter-affidavit in response to petitions concerning Assam, Tripura and North Eastern States.

            Advocate Ashwini Upadhyay had submitted before the Hon’ble court that CAA created utter confusion and that common people must be appraised on the issue. The aims, objectives, methods of execution must be discussed with people to ward off all sorts rumours. The bench agreed to these suggestions and ordered K.K. Venugopal, Attorney General, counsel on behalf of the Centre, to make effective use of audio-visual means to make individuals familiar with the legislation. Mr. Venugopal accepted the proposal and assured the court that the government shall do the needful.

ECONOMIC EFFECTS

            GDP growth is estimated at 5% in FY2019-20, and projected to rise to 6-6.5% in FY2020-21. The International Monetary Fund is even more pessimistic, estimating growth at 4.8% and 5.8% respectively for these two years.[25] By this rate, the aim for $5 trillion economy would be impossible to achieve. For conducting the exercise of nationwide NRC, many govt. officials would be required and they would have to be remunerated for their services. Experts have indicated as many as 21 lakh govt. employees would be needed. The fiscal and regulatory expenditure on carrying out the NRC is estimated to be over Rs. 60,000 crores.

            Statistics show that between 1972 and 2011, a total of 18.74 lakh immigrants entered India from these three countries. Of these, roughly 16.3 lakh immigrated from Bangladesh, 2.21 lakh from Pakistan and around 13,000 from Afghanistan. It is basic sense that while religious polarisation is bad for economic growth, social harmony is necessary for an economy to soar. Global broking house CLSA in a report on India’s economic slowdown said “There is nothing good about CAA in our view. The economic impact is our main interest.” [26] The report further accused the government of pursuing a devious strategy of deflecting public concerns about jobs and income prospects, with this controversial legislation. It claimed that this was a “gross miscalculation”. Carrying out NRC in Assam took almost a decade and 50,000 government employees. More than 1,200 crore rupees were spent for the purpose in a state that has less than 3% of the total population of the country[27]. Conducting the process on a nationwide basis will require a lot of money and resources. The Indian Govt. has assured the neighbouring countries that this is an internal matter and no discussion has been held between govt. of India and that of the three nations. This could mean detention camps will be built to accommodate the population. Since a considerable population would be left out and be declared as illegal immigrants, centre is constructing many detention camps pan India, to house these individuals. The union govt. had ordered all the states to establish a detention camp for the purpose of housing the illegal immigrants in cities or districts where major immigration check post is situated. The ministry of Home Affairs directed the states to follow the guidelines in the eleven-page ‘model detention manual’ for the purpose. It was expressly told that these identified foreigners should not be mixed up with the jail prisoners.

            Assam Detention Centre: The first such new detention centre is under construction in the district of Goalpara in lower Assam at cost of around Rs 460 million and a capacity to hold 3000 persons.[28]

CONCLUSION

            This research concludes, the Hypothesis that ‘Citizenship Amendment Act 2019 is inconsistent with the provisions of the Indian Constitution and is divisive and discriminatory in nature’ is true as is inferred from its violation of article 14 and preamble of the constitution. Further the act is drawing worldwide criticism. It has been condemned on several platforms. The anti-affidavit filed by the central govt. is vague and does not specifically answer the questions and issues raised by people. Same claims seem to appear again and again without being supported by sufficient data to back them. Centre has also shown inefficiency is curbing the violence and several human rights violations have occurred during the period. The act has such a controversial nature that state governments have started to oppose it publicly. It is inferred by the author that the central government is trying to misuse powers conferred on it by the constitution and is moulding Supreme Court’s interpretations to justify this law. CAA is bound to impact the economy of the country as is stated in the above arguments. The people are not worried about its inclusive nature but the real problem is with how it excludes certain religious communities. CAA and NRC have to be seen together and go hand in hand. This makes the situation even worse. Its simple arithmetic: add all the religious groups under threat of exclusion by the NRIC (Hindus, Buddhists, Muslims, Sikhs, Jains, Christians, Parsis). Subtract from this set all the religious groups secured by the CAA (Hindus, Buddhists, Sikhs, Jains, Christians, Parsis). We are left only with Muslims as the remainder. They will be the only community excluded from the ‘legislative benevolence’ of the Indian state as incarnated in the CAA. There is ample historical precedent for exclusionary citizenship laws and the ends they served. The Reich Citizenship Law of 1935 stripped German Jews of their citizenship, and everyone knows what came after. Closer home, the 1982 Citizenship Law in Myanmar rendered Rohingya Muslims stateless, despite the fact that they were indigenous to the Arakan region. Myanmar is currently facing charges of genocide at the International Court of Justice. Assurances by the government that “no Indian will lose citizenship” are to be welcomed. But anti-CAA protesters are convinced that under the CAA-NRC regime, sections of Muslims will cease to be “Indians” anyway. Once they lose their citizenship, the government can still claim that no “Indian” has lost citizenship, for it is the government which decides who is an Indian and who isn’t. The bright line rule imposed by the act seems to undermine the ostensibly humanitarian objective of the law.

REFERENCES

[1] http://egazette.nic.in/WriteReadData/2019/214646.pdf (visited on 20.02.2020).

[2] 42nd Amendment Act, 1976.

[3] S. R. Bommai vUnion of IndiaS. R. Bommai vUnion of India ([1994] 2 SCR 644: AIR 1994 SC 1918: (1994)3 SCC1).

[4] V.N. Shukla, Constitution of India (Eastern Book Company 9th Edn., 1994).

[5] https://www.gktoday.in/gk/article-14-of-constitution-of-india-doctrine-of-reasonable-classification/ (visited on 22.03.2020).

[6] Counter affidavit submitted by Centre (available on): https://www.livelaw.in/pdf_upload/pdf_upload-371370.pdf.

[7] AIR 2003 SC  1115.

[8] Narender Kumar, The constitutional Law of India (Allahabad Law Agency 1st Edn. ,2009).

[9] The Registration of Foreigners Rules, 1992, available at:
https://mha.gov.in/PDF_Other/fr_rules_1992.pdf.

[10] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22491&LangID=E (visited on 23.04.2020).

[11] https://pulitzercenter.org/projects/pakistan-multifaceted-persecution-ahmadiyya-community (visited on 23.04.2020).

[12] https://www.livelaw.in/top-stories/caa-doesnt-affect-indian-citizens-classification-reasonable-rational-centre-tells-sc-153952.

[13] https://www.indiatoday.in/.

[14] https://economictimes.indiatimes.com/ (last updated on Nov. 2, 2019).

[15] https://www.easternmirrornagaland.com/.

[16] The Quint, why is Northeast protesting against CAA despite exemption? (uploaded on December 13, 2019).

[17] https://indianexpress.com/article/world/set-to-create-largest-statelessness-crisis-in-the-world-european-parliament-to-debate-caa-next-week-6236738/.

[18] The Citizenship Amendment Act 2004, available at : https://www.prsindia.org/sites/default/files/1167485133_citizenship_amendment_1.pdf.

[19] https://www.business-standard.com/about/what-is-nrc.

[20] https://scroll.in/article/947436/who-is-linking-citizenship-act-to-nrc-here-are-five-times-amit-shah-did-so.

[21] https://www.indiatoday.in/news-analysis/story/caa-npr-nrc-confusion-connection-explained-india-1631534-2019-12-26.

[22] Prabhash K Dutta, Dec 26,2019 (updated on Dec. 26, 2019).

[23] Counter affidavit submitted by centre:  https://www.livelaw.in/pdf_upload/pdf_upload-371370.pdf.

[24] https://www.ndtv.com/india-news/citizenship-amendment-act-internal-matter-says-government-after-un-human-rights-body-approaches-supr-2189012.

[25] https://economictimes.indiatimes.com/news/politics-and-nation/view-caa-and-nrc-are-deepening-divisions-creating-mistrust-and-hurting-the-economy/articleshow/74070411.cms.

[26] https://www.outlookindia.com/ (SOURCE: IANS).

[27] https://thewire.in/economy/all-india-nrc-costs.

[28] https://medium.com/@arshdeep773/caa-nrc-detention-centres-and-its-impact-on-india-e846a87191a3 (26 Dec, 2019).

 

Authored By:

KRITIKA YADAV

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

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