Is Citizenship Amendment Act constitutional or not?

Protests have broken out across India, a few of them violent, against the Citizenship (Amendment) Act, 2019. Some people are calling it an unconstitutional act going against the spirit of equality, while others are justifying the move.

Let’s try to analyze the scope of the act and whether it hurt the basic structure of the constitution.

What is the Citizenship (Amendment) Act, 2019?

The Citizenship (Amendment) Act, 2019 (CAA) seeks to fast-track the acquisition criteria of citizenship for persecuted minority groups present in Pakistan, Bangladesh, and Afghanistan. The six minority groups identified are Hindus, Jains, Sikhs, Buddhists, Christians, and Parsis.

Currently, the Constitution provides for citizenship by naturalization – for people who have lived in India for the past 12 months and 11 of the past 14 years. This amendment relaxes this requirement from 11 years to six years, for these minorities from these three nations.

However, CAA doesn’t have a provision for Muslim sects like Shias and Ahmedia in Pakistan and Rohingyas in Burma, who are also facing persecution.

Exclusions:

The CAA does not apply to the tribal areas of Tripura, Mizoram, Assam, and Meghalaya which are included in the Sixth Schedule of the Constitution. Also, areas that fall under the Inner Limit notified under the Bengal Eastern Frontier Regulation, 1873, will be outside the Act’s purview which includes Arunachal Pradesh, Mizoram, and Nagaland.

Why the protests?

There are various reasons for the protests taking place across India against CAA. In the northeast, the protest is against the implementation of CAA in their areas, as they fear that it will cause a rush of immigrants in their area, which will alter their demographic and linguistic uniqueness.

In the rest of India, people are protesting against the exclusion of certain sects of Muslims. They feel that CAA does not protect all religious minorities, nor does it apply to all neighbors equally, which goes against Article 14 right to equality, and secular nature of the constitution.

Is it constitutional or not?

Let’s understand this by answering a few questions regarding CAA:

Does it introduce a specific religious criterion for inclusion or exclusion?

Government’s view:

No, CAA per se doesn’t exclude Muslims or other communities from acquiring citizenship. It just uses this criterion in the context of the 3 countries for identifying persecuted minority groups.

The distinction used for granting citizenship is, individual citizenship v/s a group entitled for citizenship. CAA identifies a group and doesn’t take away the right of Muslims even from these countries to apply for citizenship, asylum or refugee.

Critics view:

They believe that there is a deliberate attempt to exclude Muslims from the CAA, just because they are Muslims and to relegate them to a status that is inferior to the other communities. This is being considered as India’s first attempt to enshrine religion as an integral part of citizenship law

Is choosing these countries and communities justifiable?

Government’s view:

Historically these countries were part of undivided India, having indigenous populations along with non-Muslim and Muslim populations. When they got divided they signed pacts to safeguard the minority communities in each other’s country. In the Nehru-Liaquat Pact, 1950 which is based on critical hostage theory, both have given each other assurance that the religious minorities in their countries will be protected. Thus, the government feels that India owes responsibility towards them if they are facing persecution.

Also, before 1971 the population of non-Muslims in Pakistan and Bangladesh was greater than what it is today, which means either they have been converted to Muslims forcefully or fled the country or have been killed. In any case, India feels an obligation toward communities facing persecution in their countries. For ex: After the Talibanisation of Afghanistan when many Muslim and non-Muslim people fled Afghan due to the radical Islamic regime, India had opened its door for all those persecuted communities.

Critics view:

They have countered this argument by saying that in recent past Afghan was not part of undivided India. Also, they have questioned why only communities from these countries have been considered and not from other countries like Rohingyas of Myanmar and Sri Lankan Tamils.

What is the logic of excluding Ahmadias and Shias?

Firstly, under the citizenship act, 1955, the government is allowed to restrict the entry of specific communities or individuals for security purposes.

Secondly, if historical facts are to be considered then these were the groups who have supported the two-nation theory and voluntarily chosen to become a part of Islamic nation Pakistan. Thus, equating them with other non-Muslim communities won’t be justifiable.

Also, there have been cases when these groups have portrayed hatred toward Hindu worshippers specifically, therefore, they can’t be compared to Afghans fleeing Talibanisation.

Lastly, they follow a specific version of Islam and if they come to India, there is a possibility that they’ll hinder the Indian version of Islam and 80% of the Hindu population.

Can Article 14 be used in this context?

There are two aspects to clarify the position of CAA with respect to this article:

Firstly, Article 14 is present in Part 3 of the constitution which deals with the fundamental rights of the people and not citizenship. Thus, it can’t be considered alone to understand the constitutionality of CAA. It has to be read along with Part 2 of the constitution which deals with the citizenship criteria.

Secondly, the concept of equality under Article 14 can be used only after identifying the group on which it has to be used on. It clearly states that similarly placed people are to be treated equally and not treating un-equals equally.

Therefore, in the case of Ahmadias and Shia, the government has justified their distinction by saying that they have been persecuted on a sectarian basis. And other non-Muslim communities are being persecuted on a religious basis, therefore both of these groups can’t be equated under Article 14.

Also, under section 6(b) of CAA, even these persecuted minority groups won’t be considered equal to the normal citizens of India and there will be enhanced obligation placed on them for the reasons of security and because they have acquired citizenship through naturalization. Thus they’ll be under government surveillance as long as security concerns are considered, which clearly suggests that Article 14 doesn’t play a role here anyways, otherwise there wouldn’t have been any discrimination for them as well.

What is the legal position for the grant of citizenship under the Indian constitution?

Part 2 of the constitution containing Article 5 to 11 deals with ways of obtaining citizenship. It is read along with the Citizenship Act, 1955 and Foreigners act, 1946, for a full interpretation.

Under these articles, it has been clearly stated that union parliament has full power to decide on citizenship rules and restrictions, for maintaining uniformity in the country and states have no other option than to follow its guidelines

Thus, when Parliament passes legislation that doesn’t hamper the provisions under article 5 to 12, then it must be treated as constitutional.

Was it not possible to tweak the citizenship act, 1955 instead of amending it?

No, introducing a religious angle to the whole act would have been problematic. However, limiting its scope to countries which have specific religious identities by virtue of their constitution and have religious minorities targeted because of that religion, was a better way to address that particular issue.

Final words:

There have been many PILs filed against provisions of CAA and to decide on its constitutional validity. But currently, since the Supreme Court did not clamp a stay on CAA, the home ministry has the right to notify rules about who all can apply for citizenship, notify the authority and state minimum requirements and cut-off date.

In future also, if the government is able to prove that the distinction done between the groups under article 14 are justifiable and the restrictions put are reasonable, then this act won’t be declared unconstitutional in any sense and its provisions have to be followed upon according to the rules made by the union government.

Till then, the government should regulate the media properly for maintaining public order and harmony. Alongside it should work on an awareness campaign to disseminate information among the public to clear their doubts and reduce their fear so that proper law and order can be maintained within the country.