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  • Writer's pictureRitik Agrawal

THE LEGALITY AND IMPLICATIONS OF THE CITIZENSHIP AMENDMENT ACT, 2019

Updated: Jan 16

Author: Animesh

ICFAI University, Dehradun



ABSTRACT

Citizenship is not a new concept to the world as it has been in concept from the old ages. The idea of citizenship was brought to regroup and restructure the citizens of a particular state in a manner so that they can be governed by a single rule and law. With the derivation of the concept of citizenship, many countries in the world tried to adopt different forms of citizenship. There are countries in the world that offer single citizenship, some offer dual citizenship. The best example of dual citizenship is in the USA where there is a concept of dual citizenship that is one of the states in which a particular person is residing and the other is of the USA. Taking our country India has a separate chapter that deals with the concept of citizenship which is contained in Section 5-11 of the Indian Constitution. The Citizenship Amendment Act, of 1955[i] was first passed to regulate or clear the concept of whom citizenship can be granted. Thereafter, many amendments have been made to the act for better efficiency and management of citizenship. The article will include the history of migration in India, Methods to apply for citizenship, the need for the Citizenship Amendment Act, of 2019, features of the Act, exceptions to the Act, implications of the Act, and the petition filed by various organizations to overrule the Act.

INTRODUCTION

A unique route to citizenship for non-Muslim immigrants from some nations has been carved out under the Citizenship (Amendment) Act of 2019[ii]. The amendment was brought to grant citizenship to the Hindus, Sikhs, Christians, Jains, Parsis, and Buddhists facing racial discrimination and prosecution in their particular country. The countries in which they are living are mostly Muslim-majority countries and there is often a scenario where they are forced to convert to Muslim and if they resist, they are brutally tortured for not doing so. The other ill-treatment includes the abduction of girls from these communities for using them as slaves and prostitutes.

HISTORY OF THE PROBLEM OF MIGRATION AFTER PARTITION

After India gained Independence from the tyrant Britishers the nation was divided into two separate nations based on religious factors due to high demand by various political leaders. The Partition and the creation of a nation solely based on religion created a fear factor of being prosecuted so people started to migrate towards the nation formed considering their religion. Due to this, there was a large influx from Pakistan in the first wave which began on 1st March 1947. Due to the unfavourable conditions in West Pakistan, particularly in Karachi, many Indian Muslims who had immigrated there in the second wave of immigration in 1948 desired to return to India. The problem arose when the Muslims who went to West Pakistan returned to India their houses were given to refugees who had migrated to India in the first wave. To solve this growing problem the government on July 19, 1948, implemented a system that required anyone traveling from West Pakistan into India to obtain a permit from the Indian high commission in Karachi or Lahore. With the caveat that no one may be so registered unless they had lived in Indian territory for at least six months before the date of their application.

HOW ONE CAN APPLY FOR CITIZENSHIP

The Citizenship Act of 1955[iii] contains the rules governing Indian citizenship. Articles 5 through 11 of the Indian Constitution exclusively discuss who was a citizen as of January 26, 1950.

According to Article 11 of the Indian Constitution, the parliament has the authority to enact rules and regulations about citizenship. Parliament enacted the Citizenship Act in 1955[iv] for this reason. The Citizenship Act of 1955[v] has undergone several revisions, most recently in 2019. Previous revisions include 1986, 1992, 2003, 2005, 2015, and 2016.

METHODS OF APPLYING FOR CITIZENSHIP

There are five ways to acquire Indian Citizenship-

  • Birth (Section 3[vi])

  1. A person is an Indian citizen if they were born on Indian soil.

  2. A person born on or after January 26, 1950, but before July 1, 1987, regardless of the parent’s nationality. Jus soli (right of soil) is the name of it.

  3. A person who was born before 3 December 2004 but on or after 1 July 1987. At the moment of birth, either parent of the child should be an Indian citizen. Jus sanguins (right of blood or descend) is the name given to it.

  4. A person who was born on December 3, 2004, or later. At the moment of birth, the child's parents must both be citizens of India.

  5. A person who was born on December 3, 2004, or later. At the moment of birth, the child's parents must both be citizens of India.

  6. A person cannot become an Indian citizen if either of his parents is an enemy alien, foreign diplomat, or illegal immigrant.

  7. According to the Citizenship Amendment Act of 2003[vii], an illegal immigrant is someone who enters Indian territory without a valid passport, uses a fake passport, or stays longer than allowed by visa permission.

  1. A person will be regarded as an Indian citizen if they were born outside of India on or on 26 January 1950 but before 10 December 1992. But only under the condition that at the time of his birth, his father must be an Indian citizen.

  2. Either parent (mother or father) of a child born on or after December 10, 1992, but before December 3, 2004, must be an Indian citizen.

  3. Following the Citizenship Amendment Act of 2003[ix], the government issued a decree saying that a child should not be considered Indian by his ancestry alone. Within one year after birth, registration was required by law. The government may prolong it for however long is necessary.

  • By Registration (Section 5[x])

  1. If a person of Indian descent resided in India for at least seven years before applying for registration.

  2. If the applicant has lived regularly in India for seven years before submitting the registration application and is married to an Indian citizen.

  3. If a person is a juvenile and either parent is an Indian citizen.

  4. A person who has lived in India for a year before applying for registration who, before independence, was a citizen of India or whose parents were.

  5. If a person has lived in India for a year before applying for registration and is registered as an overseas Indian citizen (a foreigner of Indian descent who is permitted to work and live there).

  • By Naturalisation (Section 6[xi])

  1. A central government application is required to become a citizen.

  2. A person must meet the requirements of the third schedule of this act to be granted citizenship.

  3. The applicant for a citizenship certificate must be of high moral character, be fluent in one of the languages listed in the eighth schedule of the Indian Constitution, be a resident of India legally, and have given up any prior citizenship.

  4. The applicant must have lived in India for 11 of the previous 14 years, plus the year just before applying.

  5. The government may exempt the requirements listed in the third schedule of this act if the person has significantly contributed to or served subjects such as science, the arts, literature, or human progress.

Note: Following the Citizenship Amendment Act of 2019, the period from eleven to five years has been reduced, along with the year immediately preceding the application. Six years have now passed in total.

  • By Incorporation of Territory (Section 7[xii])

  1. The central government must publish an official gazette announcing the accession of any territory or state to the Union of India.

  2. Several areas, including Goa, Sikkim, Puducherry, Daman, and Diu, were annexed by India, giving their inhabitants Indian citizenship

NEED OF THE CITIZENSHIP AMENDMENT ACT OF 2019

According to the administration, the necessity for the Act was felt because minorities were fleeing persecution in nations with a majority of Muslims. The Act's goal is to confer citizenship to undocumented immigrants or those unable to provide proof of residency. If they enter the nation on or before December 31, 2014, the CAA 2019 grants citizenship to unauthorized immigrants from Pakistan, Bangladesh, and Afghanistan and reduces the qualification term for Indian citizenship from 11 to 5 years. As a result, immigrants have the chance to become citizens without having to produce any paperwork. Therefore, as long as the aforementioned requirements are satisfied, the CAA will assist such migrants in easily obtaining citizenship.

FEATURES OF THE ACT

  1. The Citizenship Amendment Act of 1955[xiii] forbids citizenship for illegal immigrants. The primary reason for passing this Bill was to update the previous Act and offer citizenship to undocumented immigrants who faced persecution in India's neighbours. The migrants were only allowed to practice six different religions under the Bill: Buddhism, Hinduism, Sikhism, Jainism, Parsis, Christianity, and Afghanis. The Act said that it applied to "those who fled due to religious persecution or had a fear of being persecuted" from Bangladesh, Afghanistan, and Pakistan, three neighbouring countries.

  2. The law also contained a few other amendments in addition to this. First, the deadline for citizenship had been extended to December 31, 2014.

  3. The legislation also shortened the naturalization process for all members of the six minority faith organizations from 11 to 5 years.

  4. The bill also included changes for OCI (Overseas Citizens of India) holders in Section 7D[xiv]. If their spouse or they are of Indian descent, a foreigner may register for OCI. OCI cardholders will also be eligible for several privileges, including the freedom to work and study anywhere in the nation.

  5. According to Section 6B, Clauses 2 and 3 of the Act[xv], these individuals will be treated as Indian citizens as of the date of their admission and all legal actions taken against them in connection with their unlawful migration or citizenship will be dropped.

EXCEPTIONS

  1. Due to their inclusion in the Constitution's Sixth Schedule, the tribal regions of Tripura, Mizoram, Assam, and Meghalaya are exempt from the Citizenship (Amendment) Act. Additionally, the Act will not apply to regions that are within the Inner Limit defined by the Bengal Eastern Frontier Regulation of 1873. As a result, nearly the whole states of Arunachal Pradesh, Mizoram, and Nagaland are kept outside the Act's purview.

  2. The Act shields the citizens of the six groups from prosecution under the Passport Act of 1920[xvi] and the Foreigners Act of 1946[xvii]. The two Acts outline the penalties for entering the nation illegitimately and remaining there while holding a valid visa or permit.

IMPLICATION OF THE ACT

  1. Discrimination against a particular community- The act has been criticized form various organizations, political parties, and international leaders on the ground that the Act specifically discriminates against the Muslim community. It does not include the Ahmadis and Balouch from Pakistan, Uighurs from China, and various other Muslim minority communities who face the problem of prosecution. If the Act is passed to protect the religious minority people in three countries, then why they should not be included they even face discrimination in these countries irrespective of their religion.

  2. Against the principle of equality- The principle of equality is enshrined under the Indian Constitution under Article 14[xviii]. The article talks about “Equality before Law” to any person and not just citizens and this Act violates one of the most important aspects of the Constitution. The articles particularly discriminate against people belonging solely on the grogroundsat they belong to a particular religion. The Act should include these people also so that there is no violation of their rights of these people as well there is no violation of the Constitution.

  3. Against Article 21 of the Indian Constitution[xix]- The life and personal liberty of each individual is violated if they are facing any form of discrimination against them and not being included in the list is violative of life and personal liberty which is guaranteed to them.

  4. Issue in North-East India- Even North-East India has been excluded from this Act but if the huge population of migrated persons arrives in the country, they will surely hamper the demographic population of the inner line permit region and restrict the growth and job opportunity of the people of northeast India. The North-east is already facing an influx of illegal immigrants from Myanmar in the form of Rohingyas who have altered the demographic population of the area, increased the crime rate, uncontrollably increased population and have taken many jobs in the north-east and hampered the religion and culture of the North-East state. So giving another sect of people citizenship will even worsen the condition of the North-east state.

  5. Preparation of NRC all over India- The Central after preparing the NRC list in Assam declared that NRC will be prepared for all over the country so that illegal immigrants can be identified and prosecuted. To be identified as a citizen of the nation one has to show an official ID given by the Central Government. The problem is when any person other than the Muslim community is unable to procure or show any governmIDt Id, he will be given Indian Citizenship through naturalization but a Muslim person who is unable to show documents will be regardedan as iimmigrantigrants and deported.

It is up to the government to see how it handles these problems and comes out with effective solution so that the Act is not a waste of time for the government as it has involved a considerable or ample amount of time of Parliament to draft the Bill and getting it passed in both house of Parliament.

SUPREME COURT OBSERVATION

A petition was filed by the All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi, Congress leader Debabrata Saikia, advocate M.L. Sharma, law students, and Trinamool Congress MP Mahua Moitra who raised the issue that the Act is constitutionally invalid as it violates the articles enshrined in the Constitution. However, the Supreme Court opted to take the plea submitted by the Indian Union Muslim League as the principal case during its hearing on December 6. Kerala was the first state to contest the CAA, and it did so by filing a lawsuit under Article 131 of the Constitution[xx]. The Supreme Court is empowered to handle cases involving the Indian government and one or more states under Article 131. The argument against the amendment was that it broke Articles 14, 15, 19, and 21.[xxi]

According to the government, the change was a restricted legislative move that had no impact on the rights of Indian people as they currently stand. Furthermore, it was argued that judicial review does not apply to the problems caused by the modification. The court has not yet rendered a decision about the Act's constitutionality.

CONCLUSION

The Act has been framed in a way that it grants citizenship to religiously prosecuted people in these three countries but there are many flaws and irregularities to be considered so that the Act does not face any type of agitation from any political party, any religious group, and citizens of the state. It is now up to Supreme the Court to see whether the Act violates the rights of any particular sect of religion in the nation or whether it is merely an issue rising without any fact and for the purpose of gaining publicity.

REFERENCES [i] Citizenship Amendment Act, 1955, No. 57 of Indian Parliament, 1955 (India) [ii] Citizenship Amendment Act, 2019, No. 47 of Indian Parliament, 2019 (India) [iii] Citizenship Amendment Act, 1955, No. 57 of Indian Parliament, 1955 (India) [iv] Citizenship Amendment Act, 1955, No. 57 of Indian Parliament, 1955 (India) [v] Citizenship Amendment Act, 1955, No 57 of Indian Parliament, 1955 (India) [vi] Citizenship Amendment Act, 1955, s 3, No. 57 of Indian Parliament, 1955 (India) [vii] Citizenship Amendment Act, 2003, No. 39 of Indian Parliament, 2003 (India) [viii] Citizenship Amendment Act, 1955, S 4, No 57 of Indian Parliament, 1955 (India) [ix] Citizenship Amendment Act, 2003, No 39 of Indian Parliament, 2003 (India) [x] Citizenship Amendment Act, 1955, s 5, No 57 of Indian Parliament, 1955 (India) [xi] Citizenship Amendment Act, 1955, s 6, No 57 of Indian Parliament, 1955 (India) [xii] Citizenship Amendment Act, 1955, s 7, No 57 of Indian Parliament, 1955 (Indian) [xiii] Citizenship Amendment Act, 1955, No.57 of Indian Parliament, 1955 (India) [xiv] Citizenship Amendment Act, 1955, S 7D, No. 47 of Indian Parliament Act, 2019 (India) [xv] Citizenship Amendment Act, 1955, S 6B clause 2 and 3 of Indian Parliament Act, 2019 (India) [xvi] Indian Passport Act, 1920, No. 34 of British India, 1920 [xvii] The Foreigners Act, 1946, No 31 of Imperative Legislature Assembly, 1946 [xviii] Constitution of India, 1950, art 14 [xix] Constitution of India 1950, art 21 [xx] Constitution of India, 1950, art 131 [xxi] Constitution of India 1940, art 14, 15, 19, 21

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