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  • S. Keerthana

CONSTITUTIONALITY OF CITIZENSHIP AMENDMENT ACT, 2019

S. Keerthana,

Dr. Ambedkar law university, Soel

CONSTITUTIONALITY OF CITIZENSHIP AMENDMENT ACT, 2019

INTRODUCTION:

Citizenship generally does not contain in the constitution. But our Indian constitution contains provisions related to citizenship so it is considered one of the unique features of our Indian constitution. It provides modes for Acquisition and Termination of citizenship[i]. It has its origin from the separation of British India into India and Pakistan, the people in the British India was given an option to choose whether they will belong to India or Pakistan. So it become crucial for the provisions of the citizenship in the constitution. A citizen is a person who enjoys both civil and political right in a state. People in the state are divided into citizens and non-citizens who is known as aliens. Citizens have certain advantages conferred by part Ⅲ of the constitution, but aliens have only certain rights. Part Ⅱ of the constitution describes certain classes of people would deem to be the citizens of India after commencement of the Indian constitution on 26th January, 1950 and leaves the entire citizenship to be regulated by the laws made by the parliament. By using the power conferred under Article 11 of the Indian constitution the parliament has enacted Indian citizenship act, 1955[ii]. Which contains provisions related to Acquisition and termination of citizenship after the commencement of the constitution. They are certain fundamental rights conferred to citizens by the constitution for example, the right not to be discriminated against any citizens based on the ground only of religion, race, caste, sex, place of birth or any of them (Article 15). Equality of opportunity in the public employment (Article 16). Right to freedom (Article 19). Cultural and educational right under (Article 29 & 30). But equality before law (Article 14) and protection of life and personal liberty (Article 21) are available to both citizen and non-citizen. They are certain amendments brought by our Indian parliament in the Indian citizenship act, 1955 which we are going to see in this Article.

CONSTITUTIONAL PROVISION:

Indian constitution contains provisions related to citizenship under Article 5 to 11. It provides methods for acquiring citizenship and its termination. Constitution declares certain set of people would deem to be the citizens of Indian after the commencement of the constitution and leaves the entire matter related to the citizenship in the hands of the parliament. The parliament can enact laws for regulating citizenship in India as power conferred by the constitution. The following are the modes of Acquisition and termination of citizenship under Indian constitution.

Citizenship by Domicile (Article 5)[iii] : a person is entitled to the citizenship of India if he has his domicile in the territory of Indian[iv] and he must fulfil the conditions mentioned under Article 5 that is he must have born in India or either of his parents would born in territory of India or he must be ordinarily resident in the territory of India for not less than five years immediately after the commencement of the constitution[v].

Citizenship for migrant from Pakistan (Article 6): the person who have migrated from Pakistan are classified into two types that is (Ⅰ) those who came to India before July 19, 1948 and (Ⅱ) those who came to India after July 19, 1948. Article 6 states that a person who have migrated from Pakistan to Indian after the commencement of the constitution on 26th January 1950 are deemed to be citizen of India if he or either of his parents or any of his grandparents were born in India as provided in Government of India Act, 1935 and in addition to it, they should also fulfil the condition mentioned in Article 6 of the constitution.

Citizenship of migrant to Pakistan (Article 7)[vi] : According to Article 7[vii], citizen by domicile (Article 5)  or by migration (Article 6) would not be the citizen  of India if they migrated to Pakistan after March 1, 1947. There is a Exception under Article 7 if favour of person who have returned to India on the basis of permit for resettlement in India. Such person can acquire Indian citizenship in the same manner as the person migrated from Pakistan under Article 6.

Citizenship of the person who is living abroad (Article 8) : Article 8 provides that any person or either of his parents or any of those grand-parents was born in India as defined in Government of India Act, 1935 and who is ordinarily residing in any country outside India would deemed to be the citizen of  India if he has been registered as an citizen of India by Diplomatic or Consular representatives of India in the country in which the person choose to reside for time being. The Application should be made in the manner prescribed by the Government of India.

Voluntary Acquisition of citizenship of foreign country not to be the citizen of India (Article 9) : Article 9 states that if a person voluntarily Acquired the citizenship of the foreign country than he cannot claim Indian citizenship under Article 5,6 & 8. It only deals with voluntary acquisition of foreign citizenship before commencement of the constitution, after the commencement of the constitution this matter will be governed by Indian citizenship Act, 1955.

Continuation of citizenship of India (Article 10) : Article 10 states that the person who are already citizens of India shall deemed to continue as the citizen even if there is any new law passed by the parliament.

Power of the parliament to make law for the regulation of citizenship (Article 11) :

Article 11 states that nothing in the Article 5 to 10 prevent the state from making laws for the regulation of the citizenship and it imposes special power to the parliament to make law for modes for Acquisition and Termination of the citizenship in India.

INDIAN CITIZENSHIP ACT, 1955 :

The parliament has enacted Indian Citizenship Act, 1955 with the exercise of the power conferred by the Article 11 of the Indian constitution. It contains provision related to Acquisition and Termination of citizenship.

Modes of Acquisition:

v  Citizenship by Birth (Section 3)

v  Citizenship by Descent (Section 4)

v  Citizenship by Registration (Section 5)

v  Citizenship by Naturalisation (Section 6 )

v  Citizenship by Incorporation of Territory (Section 7)

Modes of Termination:

v  By Renunciation (Section 8)

v  By Termination (Section 9)

v  By Deprivation of Indian citizenship by an order of the central Government.

INDIAN CITIZENSHIP AMENDMENT ACT, 2019:

Indian citizenship Act, 1955 has been amended several times in the year 1986, 1992, 2003, 2005, and finally 2019. Indian citizenship amendment Act, 2019 brought drastic changes in the modes of Acquisition and Termination of citizenship. The main reason for amending the Indian citizenship act, 1955 is to give the citizenship to illegal migrants and provide documents to the person who do not have any residential document. It states migrants from Bangladesh, Pakistan and Afghanistan who are non-Muslim can obtain their Indian citizenship without any difficulty and it also lowers the qualification period for the Indian citizenship from 11 to 5 years, provides such migrants enter the country on or before 31st December, 2014. It is therefore enacted to grant citizenship to the migrants who face religious persecution in neighbouring countries of India such as Pakistan, Bangladesh and Afghanistan. The Act was passed to provide Indian citizenship for the migrants of six different religion such as Hindu, Sikhs, Buddhists, Jain, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Every person is eligible to Acquire Indian citizenship if he or she has resides in India during the last 12 months and for 11 of the previous 14 years. But this qualification is before the Amendment to the act now there is reduction in the period so it is relaxed from 11 years to 5 years. An illegal migrant means the foreigner who enter India without any legal document like passport and visa or staying in the country beyond their permitted period. Before the amendment the undocumented migrants were not eligible to apply for citizenship of India through registration and Naturalisation. The foreigner act and the passport Act also debars them and put in jail but after the amendment they have given the rights to apply for the Indian citizenship as the method prescribed in the citizenship Act, 2019.

FEATURES OF INDIAN CITIZENSHIP ACT, 2019 :

The main aim of Amending the Act is to provide Indian citizenship to Hindu, Sikh, Buddhist, Jain, Parsi and Christian migrants from Afghanistan, Bangladesh and Pakistan. In other words the amendment makes people belonging to the above mentioned religion who have migrated from the neighbouring countries of India can easily Acquire Citizenship without any difficulties or rigid rules and regulations. But this law applies to the person who were forced or compelled to migrate to India due to the religious Persecution. The amendment changed the cut-off date for Acquiring citizenship to December 31st 2014, this means migrant who want Indian citizenship should enter the India before December 31st 2014. This Act also relaxes naturalization period from 11 years to 5 years, for all those who belong to the above mentioned religion. Under section 7D a foreigner can register for Indian citizenship if he is of a Indian origin or his spouse of a Indian origin. The holder of overseas citizen of India were also given certain benefit provided by the local laws of the country and also clause 2 and 3 of section 6B states that such person who have entered India before the prescribed period shall deemed to be the citizen of India and all legal proceeding against such person with respect to their illegal migration or citizenship shall be closed.

EXCEPTION TO THE ACT:

v  First exception is that the Act does not applies to the tribal areas of Assam, Meghalaya, Mizoram and             Tripura, as included in the 6th schedule of the constitution.

v  Next the act also exempted the areas under the Inner line permit under the Bengal Eastern Frontier Regulation, 1873.

CONSTITUTIONALITY OF THE INDIAN CITIZENSHIP ACT, 2019 :

The Amendment is against the concept of Secularism:

The preamble of our Indian constitution declares India as a ‘Secular Nation’. Secularism means treating every religion equally without giving special status to any religion as a state religion. So that the people can live peacefully without any discrimination but the amendment to the Indian citizenship grants citizenship based on religion. So, it violates the principle of secularism as mentioned in the preamble of the constitution.

Article 14[viii] and Indian citizenship (Amendment) Act, 2019:

Article 14 of the constitution states that ‘ The state shall not deny to any person equality before law and equal protection of law within the territory of India’. So by granting citizenship based on religion violates the equality principle contained in Article 14 and preamble also considers the word equality as an important concept that the country need to follow for its smooth functioning of its government.

Article 15 and Indian citizenship (Amendment) Act, 2019:

Article 15 of the constitution states that no person shall be discriminated on the ground only of religion, race, caste, sex or place of birth or any of them. The citizenship Amendment Act discriminates the migrants based on their religion and grants citizenship only to Hindu, Sikh, Jain, Buddhist, Parsi and Christian and it completely ignores the Muslim migrants from the neighbouring countries of India like Pakistan, Afghanistan and Bangladesh by stating the reason that these counties are Muslim majority country so Muslim will not face any religious persecutions.

Other issues on Indian citizenship (Amendment) Act, 2019:

The Citizenship Amendment Act, 2019 violates the Assam Accord by changing the cut-off dates to 31st December, 2014. Which leads to the protest in many parts of Assam. This Amendment also violates Article 16 which ensures equality of opportunity in public employment. The migrants from Hindu, Sikh, Jain, Buddhist, Parsi and Christian are allowed to participate in the public service of government but Muslims migrants have to wait 11 years to participate in the public service of the government. If this continues this will lead to unemployment in the Assam. In support of this many protests took place within and out India. Even after so many protests the amendment bill was passed as an Indian citizenship Act, 2019 on 11th December 2019. Due to COVID 19 the protests and riots were stopped. But still now many states in the country refuse to accept the act.

CONCLUSION:

The Indian citizenship (Amendment) Act, 2019 was passed to provide citizenship to the undocumented migrants from the neighbouring counties of Pakistan, Afghanistan and Bangladesh and it ignores Jews and Atheists. The Act recognizes Hindu, Sikh, Jain, Buddhist, Parsi and Christian religion and it completely ignores Muslim migrants. It also excludes many neighbouring counties of India like Nepal, Bhutan and Myanmar. It only focuses in religious persecution and neglects other aspects. The parliament should use the power wisely granted by the Indian constitution under Article 11 and it should not misuse it. The parliament should pass laws to protect the interest of the people in the India and should not cause any harm. The laws passed by the parliament should uphold the principle of Secularism and it should not discriminate citizen of India based on their religion and it should give religious freedom to every citizen to practice their own religion and it should not interfere in the religious freedom of the people. So, the parliament should implement the law knowing the needs of the people and to maintain their interest.

REFERENCE:

Books:

1.      SUBHASH C. KASHYAP, Citizens and the constitution, Publication Division (2018)

2.      ANUPAMA ROY, Mapping Citizenship in India, Oxford University Press ( 18th October 2010)

3.      DR. J. N. PANDEY, Constitutional Law of India, Central Law Agency (60th ed. 20230

Websites:

4.      https://byjus.com

[i] Indian constitution 1950

[ii] after the commencement of the constitution 26th January, 1950.

[iii] Mohammad raza vs state of Bombay, AIR 1956 SC 1436.

[iv] Louis de raedt vs union of  India, (1991) 3 SCC 554. 

[v] Pradeep jain vs union of india AIR 1984 SC 142 : (1984) 3 SCC 654.

[vi] State of Bihar vs Kumar Amar Singh, AIR 1955 SC 282.                                       

[vii] Bhawanrao Khan vs union of India, AIR 2002 SC 1614

[viii] Constitutional law of india (2023)

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