Authored By: Avantika Jain, B.A.LLB (HONS.), USLLS, GGSIPU, & Co-Authored By: Prithika Vajpeyi, BALLB (HONS.), USLLS, GGSIPU
INTRODUCTION
“The Citizenship Amendment Act (CAA) will never be repealed, and assuring the citizenship of India is a domestic issue and is a matter of India’s sovereignty. We can’t compromise with India’s right to take its own decisions,” Amit Shah said in a podcast with Smita Prakash days after the Narendra Modi-led government implemented the Citizenship Amendment Act (2019).
The Citizenship Act of 1955 establishes the criteria and conditions under which a person can acquire Indian citizenship. It outlines those individuals born in India, those of Indian descent, or those who have resided in India for a specified period, among other factors, may acquire citizenship. Citizenship is a fundamental and essential concept in a democratic society. According to the Merriam-Webster Dictionary, a citizen is someone who owes allegiance to a sovereign state and is entitled to the state’s protection. In each state, the population is divided into two categories: citizens and aliens.
The issue of citizenship was of particular significance during the drafting of India’s constitution because the constitution aimed to grant specific rights and privileges to those holding Indian citizenship while denying them to “aliens.” Therefore, Indian citizens enjoy certain constitutional rights that are not extended to aliens. The constitution defines the groups of individuals who would be considered Indian citizens at the time of the constitution’s commencement and leaves the entire citizenship law to be regulated by future legislation enacted by Parliament. On the other hand, the 1955 Act contained provisions stipulating that illegal migrants were prohibited from acquiring Indian citizenship.
The preamble of a constitution provides insight into the character of the legal framework, and the preamble of the Indian Constitution commences with the phrase, “We, the people of India,” signifying “Citizens of India.”
The term “Citizen of India” is defined, recognized, verified, and distinguished from infiltrators by the following laws:
The term ‘infiltrator’ refers to any non-citizen residing in India who is not a tourist or diplomat because India lacks a specific law to define a ‘refugee.’ Tibetans, Sri Lankan Tamils, and certain specified groups of foreigners are considered refugees due to government recognition.
According to the Foreigners Act, the government is obligated to deport all infiltrators or illegal immigrants from Indian territory. Presently, there is no codified law in place, resulting in a lack of estimates regarding the number of illegal immigrants living in India. Estimating the number of illegal immigrants in India is akin to guessing the amount of unaccounted wealth circulating in the Indian economy, making it a futile exercise in speculation. Understanding the historical context of this issue is crucial to grasp its significance. However, in 2015 and 2016, the Indian Central Government issued notifications that exempted certain groups of illegal migrants from the provisions of the aforementioned Acts of 1920 and 1946.
EXAMINATION OF NEXUS AMONGST CAA, NRC & NPR
Background:
The story started on January 7, 2004, when the Citizenship Amendment Act, 2003, which was passed by the Parliament under Prime Minister Atal Bihari Vajpayee’s administration, made significant revisions to the 1955 original statute.
Through this amendment, the term “illegal migrant”[4] was introduced into the legal system for the first time. According to the law, a foreigner who enters India illegally is considered an immigrant, without the following paperwork: a current passport or other travel authorization, as well as any other paperwork or authority that may be required by or under any applicable laws; or if they have a valid passport or other travel documents, as well as any other documentation or permission that may be required by law, and they stay in Indian territory for longer than is allowed;[5]
The addition of the date, July 1, 1987, which became the foundation for determining citizenship, was another significant element.[6]
Section 3 provides for Citizenship by birth[7] -Every person who is born in India-on or before January 26, 1950, but before July 1, 1987; on or after July 1, 1987, but before the Citizenship (Amendment) Act, 2003 went into effect, and at the time of his birth, neither of his parents was an Indian citizen; following the effective date of the Citizenship (Amendment) Act of 2003, in cases where:
He or she will be an Indian citizen by birth if both of their parents are citizens of the country; if one parent is an Indian citizen and the other is not an illegal immigrant at the time of the child’s birth.
In contrast to 2010, when the National Population Register did not request the date and place of a person’s parents’ births, the future data will request this information. The requirement for the National Register of Indian Citizens—analogous to the NRC carried out in Assam—was the most significant alteration made to this Act in 2003.
As per the law:
Section 14A: Issuance of National Identity Cards[8], gives the Central Government the authority to register all Indian citizens and issue national identity cards at its discretion. It also mandates the establishment of a National Registration Authority by the Central Government and the maintenance of a National Register of Indian Citizens.
The National Registration Authority and Registrar General of Citizen Registration will be the same person as of the date that the Citizenship (Amendment) Act, 2003 takes effect. This person was appointed under sub-section (1) of section 3 of the Registration of Births and Deaths Act, 1969 (18 of 1969). The Central Government has the authority to designate additional officers and personnel as needed to support the Registrar General of Citizen Registration in carrying out her duties.
The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, which were formulated by the Central Government under the Citizenship Act, 1955, serve as the foundation for the NPR, or “National Population Register.”
It should be noted that the National Register of Indian Citizens will also have a legal foundation provided by these same regulations.
“Population Register” is defined in Rule 2(l)[9] of these Rules as the register that contains information about people who typically reside in a village, rural area, town, ward, or demarcated area (defined by the Registrar General of Citizen Registration) within a ward in a town or urban area.’
NPR is referred to as “a register of usual residents of the country” by the Office of the Registrar General & Census Commissioner. For the purposes of NPR, an ordinary resident is someone who has lived in a local region for the previous six months or more, or who plans to stay there for the ensuing six months or more.
The required demographic details for every usual resident include their name, relationship to the head of the household, father’s name, mother’s name, spouse’s name (if married), sex, marital status, date of birth, place of birth, nationality as declared, present address of usual residence, duration of stay at the present address, permanent residential address, occupation/activity, and educational qualifications.
Linking the current scenario with the background:
The Citizenship Amendment Bill, now an Act, was promoted by the Modi government through a parliamentary act that was enacted on December 12, 2019. Union Home Minister Amit Shah declared during the Citizenship Amendment Act talks that a National Register of Citizens (NRC) would be introduced by the government. The experience of Assam demonstrates that many citizens are not included in the NRC and that there is uncertainty over the identification of undocumented immigrants.
Examination of a significant amendment, the Citizenship (Amendment) Act, 2019:
In the Citizenship Act of 1955, specifically in section 2, subsection (1), clause (b), a proviso will be added. This proviso states that individuals belonging to specific communities, namely Hindu, Sikh, Buddhist, Jain, Parsi, or Christian, originating from three countries: Afghanistan, Bangladesh, or Pakistan, and who entered India on or before December 31, 2014, to escape religious persecution and have been granted exemptions by the Central Government under clause of subsection (2) of section 3 of the Passport (Entry into India) Act, 1920, or have been exempted from the application of the provisions of the Foreigners Act, 1946, or any related rule or order, will not be considered illegal migrants under this Act.[10]
This amendment effectively establishes December 31, 2014, as the cutoff date, and individuals from the mentioned communities are exempted from the requirements of the Foreigners Act, of 1946. This amendment has led to a divisive issue as it is seen as excluding people from the Muslim community, sparking heated debate.
Partition from NPR to CAA:
The commotion that resulted from the Citizenship Amendment Act culminated in and combined with a new dispute that intensified during the National Population Register (NPR) update.
The governments of Kerala and West Bengal declared the end of NPR’s operations. The NPR would result in the upkeep of an Indian resident registry, wherein the enumerator would gather biometric and demographic information from those who have resided at the enumeration site for a minimum of six months.
Expanding the National Register of Citizens (NRC) Across India:
Originally, the National Population Register (NPR) was scheduled to be compiled between April 2020 and September 2020, with the aim of having it ready before the 2021 Census. Section 14A of the Citizenship Act establishes the legal foundation for creating the NPR and links it to the Census and NRC.[11] It specifies that the Registrar General of India is responsible for serving as both the National Registration Authority and the Registrar General of Citizen Registration. Notably, the Registrar General also functions as the Census Commissioner of India. This situation raises concerns as it implies that the government could potentially use the data collected for the NPR to carry out an NRC in the future. The NRC issue has become a contentious matter, especially concerning the Muslim community, with many activists and political parties alleging that the current government is unfairly targeting this community to advance their respective party’s Hindutva agenda.
The Connection Between the Census and the NPR Process:
Every ten years, India conducts the Census, which is an official population count. It involves a detailed questionnaire designed to gather various demographic information about the country’s population. In the 2011 Census, enumerators had to record 29 specific details, including information such as place of birth, gender, marital status, occupation, age, religion, disability, mother tongue, and whether the individual belonged to a Scheduled Caste or Scheduled Tribe groups.
In contrast, the NPR process collects both demographic and biometric information about individuals. While both processes entail door-to-door enumeration, the primary objective of NPR is to create a comprehensive database of the identity of Indian residents, setting it apart from the Census. The Census does not gather personal identity information.
Furthermore, Census data is stored and managed centrally by the Registrar General of India. Once the NPR data is recorded and compiled, this information will be stored and maintained at various levels, including village or ward, tehsil or taluk (sub-district), district, and state. These combined datasets will form the National Population Register, with data hubs existing at the central level.
The relationship between NPR and AADHAAR:
Under the UPA government, the NPR and Aadhaar projects were initially seen as competing initiatives. The government was actively pushing forward with the NPR process, while Aadhaar was also being developed with strong support from the Union Finance Minister, Pranab Mukherjee. Both NPR and Aadhaar aimed to improve the targeted delivery of benefits and services to the population.
This situation led to concerns about duplication and wastage of resources, with the Unique Identification Authority of India (UIDAI) and the Home Ministry seemingly working on similar projects. To resolve this conflict, a compromise was reached between the Home Ministry and UIDAI. It was decided that the NPR and Aadhaar databases would serve different purposes. Aadhaar would be used for delivering welfare services, while NPR would have a purely administrative role in governance. It was also agreed that individuals who had already enrolled for Aadhaar wouldn’t need to provide their biometric data during the NPR process. The NPR data would be cross-checked with Aadhaar data to identify and eliminate duplicate entries. In case of any discrepancies between Aadhaar and NPR data, NPR data would take precedence. In simple terms, the NPR, conducted under the Citizenship Amendment Act of 2003, would form the primary dataset for both Aadhaar and the National Register of Indian Citizens (NRIC).
However, it’s essential to note that the landscape changed significantly with the landmark judgment in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India in 2019[12]. This judgment made Aadhaar non-mandatory, and even for accessing welfare benefits, Aadhaar is only required when the expenses are drawn from the consolidated fund of India and not
CRITICAL ANALYSIS
At its core, the CAA seeks to provide a pathway to Indian citizenship for religious minorities – specifically, Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians – who have faced persecution in neighbouring countries, namely Afghanistan, Bangladesh, and Pakistan. On the surface, the idea of offering refuge to persecuted individuals aligns with the principles of humanitarianism and compassion. However, the CAA has raised concerns on multiple fronts, such as; One of the central criticisms of the CAA is its exclusivity. By explicitly excluding Muslims, the Act has been accused of violating the secular nature of India’s Constitution, which guarantees equal treatment to all citizens regardless of their religion. Critics argue that the Act discriminates against Muslims and that such religious discrimination is inconsistent with India’s founding principles.
Additionally, the CAA is seen as intrinsically linked to the National Register of Citizens (NRC) and the National Population Register (NPR), which could collectively be used to identify and potentially disenfranchise a significant number of Muslim citizens. This linkage has led to widespread protests and fears of a broader anti-Muslim agenda. The concern is that Muslims who may not be able to produce the necessary documentation to prove their citizenship under the NRC and NPR processes may face statelessness or detention, as seen in the controversial Assam NRC.
However, the Citizenship Amendment Act of 2019 will grant Indian citizenship to immigrants who are Hindu, Sikh, Buddhist, Jain, Parsi, and Christian who come from Pakistan, Afghanistan, and Bangladesh—all of which are minority populations that experience religious persecution—if they arrive in India on or before December 31, 2014. Therefore, under section 6 of the Act, migrants from the aforementioned countries would be granted citizenship after being in India for at least five years, as opposed to being awarded Indian citizenship after staying in India for at least eleven years.
The Act’s opponents contend that by excluding Muslims, it violates the Constitution’s secular provisions. The Act does not include Muslims in its scope, nor does it take into consideration the persecution that members of the Shia and Ahmediyya faiths face in countries such as Pakistan. There is no issue of violence against Ahmediyyas and Shias in Pakistan because they identify as Muslims. In this regard, it’s also possible to bring up the fact that Ahmadiyyas spearheaded the movement to create Pakistan. Ahmadiyya Muhammad Zafrulla Khan was a prominent Pakistani activist.[13]
Thus, the very faith that called for the creation of a separate nation cannot claim preferential treatment in the granting of Indian citizenship, since India was divided based on religion back in 1947. The procedure for selecting the countries from which immigrants will receive citizenship is an important aspect that has to be investigated. Formerly comprising 23% of the population in undivided Pakistan prior to 1971, the percentage of non-Muslims in Bangladesh and Pakistan fell to 20% and 3%, respectively, when these two countries were split from united India. India therefore has a duty to these countries’ religious minorities, as they historically constituted a significant portion of the Indic religious population.
Does the Act contradict equality contained in Article 14?
It is maintained that the CAA is inherently unfair in its treatment of individuals depending on their religions. As a result, it fails to fit the Supreme Court’s definition of arbitrariness under Article 14 of the constitution, which provides equal treatment before the law and security inside India’s borders. However, equality does not entail that every rule must have a universal applicability. Equality does not deprive the state of the ability to set categories. If the law applies equally to members of a defined class, it is not open to the allegation of denial of equal protection since it does not apply to other persons.
“Religious categorization is not necessarily prohibited; in fact, our Constitution guarantees special rights to members of India’s minority religious groups. We could do away with borders if the legislation was broader and let members of all religious communities from Pakistan, Bangladesh, and Afghanistan come into India. Finding discrimination is an even more difficult argument since the law does not apply to every citizen of every country (or specified nation) who has undergone religious persecution. The boldest attorneys did not gather the confidence to present such an argument – their disadvantage, of course, being that they were not TV anchors or educated members of civil society demonstrating on the streets”, says former Solicitor General of India, Harish Salve.[14]
Another point that deserves emphasis is that Article 14 comes within Part III of the Constitution and does not control the award of citizenship. Rather, it is Part II i.e. Articles 5 to 11 that particularly deals with citizenship. The topic of citizenship is not addressed in the Constitution since Article 11 explicitly indicates that citizenship shall be governed by any law that the Parliament approves. This practically indicates that the Parliament has the right to legislate on this topic and the states have no alternative but to follow the law approved by the Parliament.
Thus, the issue of citizenship should be interpreted under Articles 5 to 11 along with the Citizenship Act of 1955 and the Foreigners Act of 1946. The Citizenship Act is related with the Citizenship Amendment Act, 2019 whereas the Foreigners Act is linked with the National Register of Citizens(NCR). The third argument that might be offered is that since Article 11 authorises the Parliament to make laws on citizenship, the legislation will be lawful if it does not contradict the spirit of Articles 5 to 11. Since the Amendment Act does not confer citizenship entirely based on religion, nor does it refuse citizenship to anybody based on religion, it cannot be argued to be unconstitutional.
Does the Act exclude some communities?
The amended legislation does not impart a religious aspect to the Citizenship legislation. It only adds a layer to the statute which speeds up the process of giving citizenship to some persecuted religious minority in certain of India’s bordering nations. It does not take away any person’s citizenship on a religious grounds. Thus, the Act is aimed for inclusion and not exclusion. Thus, the notion that the Act excludes and discriminates against Indian Muslims and that they will be at a disadvantage if this Act were adopted is fundamentally wrong.
What are the ramifications of the Act?
Many believe that the CAA would result in an inflow of illegal migrants entering India. This claim has no substance as the CAA exclusively fast-tracks the issue of citizenship to 6 communities who are in minority and fear religious persecution n Pakistan, Afghanistan and Bangladesh who have commenced living in India on or before December 31, 2014. The Act does not have the jurisdiction to award citizenship to all individuals belonging to these 6 communities, nor does it encourage migration into India in any way.
The return of the Taliban in Afghanistan and the crimes against non-believers that followed speak to the necessity of the CAA. The population of non-Muslims in Pakistan is on the decline as stated by a former advisor to a Pakistan Prime Minister in her book Purifying the Land of the Pure: Pakistan’s Religious Minorities, Farahnaz Ispahani dwindled to a meagre three per cent now from 23 per cent during the Partition of united India.[15]
There is evidence of a fall in the number of religious minorities in Bangladesh, for instance, the proportion of Hindus in the population dropped from 22% to 8.5% from 1951 to 2011.[16] Communal violence is still frequent. Many of these assaults are done at the local level by persons or groups rather than militants and are often motivated by personal conflicts, land grabs, and the apparent impunity that characterises many of them.
CONCLUSION
Thus, while the Citizenship Amendment Act (CAA) of 2019 has received criticism on several fronts, it is an important step towards providing refuge to persecuted religious minorities from neighbouring countries. The CAA upholds humanitarian principles of inclusivity and minority rights by expediting the citizenship process for Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians who were persecuted in Afghanistan, Bangladesh, or Pakistan. It does not deny Indian Muslims or any other community their existing rights and privileges as citizens. A balanced viewpoint recognises the significance of the CAA in addressing the challenges faced by religious minorities while upholding India’s constitutional principles of secularism. Addressing the complexities surrounding CAA requires a comprehensive approach. India, like any other sovereign nation, has the prerogative to manage the citizenship process in accordance with its national interests, considering factors such as economic challenges, population dynamics, and social cohesion when shaping immigration policies. In essence, the CAA reflects India’s humanitarian values and commitment to protecting vulnerable communities while navigating the complex landscape of immigration and citizenship issues.
[1] Citizenship (Amendment) Act, 2019, No. 57, Acts of Parliament, 1995 (India)
[2] The Foreigners Act, 1946, No. 31, Acts of Parliament, 1946 (India)
[3] The Passport Act, 1967 No. 34, Acts of Parliament, 1920 (India)
[4] Citizenship (Amendment) Act, 2019, §2, No. 57, Acts of Parliament, 1995 (India)
[5] Ibid.
[6] Citizenship (Amendment) Act, 2019, §3, No. 57, Acts of Parliament, 1995 (India)
[8] Citizenship (Amendment) Act, 2019, No. 57, Acts of Parliament, 1995 (India)
[9] Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
[10] Citizenship (Amendment) Act, 2019, No. 57, Acts of Parliament, 1995 (India)
[11] Citizenship (Amendment) Act 2019, § 14A, No. 57, Acts of Parliament, 1995 (India)
[12] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India)
[13] Editor, Ahmadiyyas were at the forefront of creation of Pakistan, an Ahmadiyya Unit fought against India in Kashmir in 1947-48 (December 9, 2019), https://www.opindia.com/2019/12/how-ahmadiyyas-were-at-the-forefront-of-creation-of-pakistan-islam-all-you-need-to-know/.
[14] Harish Salve, CAA is necessary: Why the many arguments about its being unconstitutional don’t hold water, TOI, March 5, 2020, 8:06 AM.
[15] Editor, Pakistan’s 23% non-Muslim population during Partition is now 3%: Ex-advisor to Pak Prime Minister, THE INDIA BLOOMS NEWS SERVICE, (March 12, 2024, 7:28 p.m.), https://www.indiablooms.com/world-details/SA/25212/pakistan-s-23-non-muslim-population-during-partition-is-now-3-ex-advisor-to-pak-prime-minister.html.
[16] Mohammad Shahisullah Report on The Challenges facing Religious Minorities in Bangladesh, MINORITY RIGHTS GROUP INTERNATIONAL, 7, (2013)
Cite this article as:
Avantika Jain & Prithika Vajpeyi,, “CAA- The Burning Question”, Vol.5 & Issue 5, Law Audience Journal (e-ISSN: 2581-6705), Pages 550 to 564 (02nd May 2024), available at https://www.lawaudience.com/caa-the-burning-question.
