CITIZENSHIP AMENDMENT ACT 2019: ASSAULT ON INDIAN DEMOCRACY by- Aayush Akar

India recognizes an individual as a citizen by virtue of birth, descent, registration, and

naturalization pursuant to the Citizenship Act of 1955, which takes effect from Part II of the

Constitution, namely Articles 5 to 9. Under the previous regime, the Citizenship Act was

amended 5 times i.e. in the years of 1986, 1992, 2003, 2005 and 2015. Another amendment

was broached by the current Modi Government which triggered protests all around the

country. The amendment made by the Government of India to the Citizenship Act of 1955 is

being hotly debated throughout all platforms. The advocates of the Citizenship (Amendment)

Act, 2019 (CAA) have vigorously argued in favor of its constitutionality as well as its

importance, thus ignoring all apprehensions and concerns relevant to its possible detrimental

impact on the country and its people. 1

WHAT WAS THE LAW PRIOR TO CAA?

An individual may be granted citizenship in four forms under the Citizenship Act, 1955,

namely i) by birth; (ii) by descent; (iii) by registration, and (iv) by naturalization. The CAA

has amended the provisions and procedures relating to the granting of citizenship by

naturalization. Before the CAA was implemented, any legitimate migrant (i.e. a person who

entered India with a valid passport and visa) living in India for a cumulative period of at least

12 years from the date of application was qualified for Indian citizenship. This privilege was

obviously not related in any way to the immigrant's beliefs pursuing Indian citizenship. The

Act does not grant citizenship to any illegal immigrants regardless of their religion. 2

WHAT HAS CAA CHANGED?

The CAA seeks to provide fast track Indian citizenship to illegal migrants belonging to the

Hindu, Muslim, Catholic, Jain, Sikh and Parsian sects who migrated to India from

Afghanistan, Pakistan and Bangladesh before 31 December 2014. Furthermore, the CAA

excludes Muslims from the application of the Act. Since the CAA mandates that these non-

1 Prabhash K. Dutta New DelhiDecember 9, 2019UPDATED: December 9 & 2019 15:55 Ist, Why Citizenship

Amendment Bill needs to pass Article 14 test, INDIA TODAY, https://www.indiatoday.in/news-

analysis/story/does-citizenship-amendment-bill-violate-fundamental-right-to-equality-1626641-2019-12-09 (last

visited Dec 26, 2019).

2 Citizenship (Amendment) Act: An unconstitutional Act, DECCAN HERALD (2019),

https://www.deccanherald.com/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-

785638.html (last visited Dec 26, 2019).

Muslim illegal migrants remain in India for a period of at least 5 years from the date of

registration, on and after 31 December 2019, they will be eligible for citizenship.

The purpose of the legislation is likely to provide shelter to the above-mentioned community

of non-Muslim illegal migrants who have endured religious persecution in Afghanistan,

Pakistan, and Bangladesh as a consequence of their minority status. Notably, the CAA does

not include Pakistan's Ahmadiyas and Shias or Myanmar's Rohingya Muslims who are also

subject to religious persecution in their respective countries. 3

WHY IS THE CAA UNCONSTITUTIONAL?

The proviso which is inserted for the definition of citizenship to the present act is clearly

unconstitutional keeping in mind the rule laid down by the Hon’ble Apex Court in the case of

State of West Bengal v. Anwar Ali Sarkar 4 in 1952. Article 14 provides for both reasonable

and rational classification. What is vital is that the rational classification needs to have a

reasonable nexus with the objective sought to be achieved by the legislation. In other terms,

there is a twin prerequisite for rational classification and a reasonable nexus to meet the

standard of Article 14, and this is regrettably ignored in this discourse. Justice SR Das in this

case explicitly mentioned that in short, while the Article forbids class legislation in order to

discriminate unfairly by granting privileges or imposing liabilities to individuals arbitrarily

selected from a large number of other persons similarly situated in relation to the privileges

sought or the liabilities proposed to be imposed, it does not preclude classification for the

purposes of legislation. 5

In short, despite their arrival to India without valid documents and permission, the

Citizenship Amendment Bill will grant illegal migrants the status of legal migrants. This

clearly indicates that the intent of the legislature is to create discrimination against Muslims

which is clearly forbidden under Article 14 of the Indian Constitution. Article 14 is one of the

foundations of the Constitution. It states, "No person shall be denied equality before the law

or equal protection of laws within the territory of India by the State." Equality before the law

means that the State shall treat all classes of persons without discrimination. Equal protection

of the law means that the State will not lay down laws or rules which discriminate between

two persons.

3 Explainer: How does one become an Indian Citizen? What changed with the CAA?, ,

https://factly.in/explainer-how-does-one-become-an-indian-citizen-what-changed-with-the-caa/ (last visited Dec

26, 2019).

4 The State Of West Bengal vs Anwar All Sarkarhabib, AIR 75 (1952).

5 A premature denouncement of the Citizenship Act - The Hindu, , https://www.thehindu.com/opinion/op-ed/a-

premature-denouncement-of-the-citizenship-act/article30362045.ece (last visited Dec 26, 2019).

Among other things, the preamble describes India as a secular state, that suggests that the

state cannot feel a greater duty to support one religion over another as a matter of policy.

Consequently, a statute that aims to expedite the awarding of citizenship to non-Muslim

illegal migrants on account of their religious persecution from thus ignoring the religious

persecution of Muslims in neighbouring countries is against the fundamental principle of

secularism reflected in our Constitution.

IS THERE AN NRC LINK?

The claim that the CAA and the NRC are completely separate or that the CAA will have no

direct or indirect effect on the NRC mechanism to be followed by the State is like living in a

fool's paradise. It would be foolish to claim that the CAA must be seen in isolation and that

its repressive essence becomes increasingly evident when perceived holistically, especially

from the wider perspective of the government's established philosophy and the long-

held policy of the incumbent government, which is nothing but a slow and gradual ethnic

cleansing of the nation. It was also clearer from the tweet of BJP Official handle that the

current regime when the NRC exercise in the state of Assam is connected with CAA. More

than 19 lakh Hindus were eliminated from the NRC when this process was done in Assam

under the guidelines of Hon'ble Apex Court. Some claim that the Citizenship Amendment

Act is a method of obtaining citizenship of these 19 lakh Hindus in Assam. 6

IS THERE VIOLENT USE OF SECTION 144 OF CrPC?

With demonstrations against the Citizenship Amendment Act intensifying in multiple

locations across many nations, governments have enforced Section 144 of the Criminal

Procedure Code (CrPC) banning demonstrators from assembling against or in support of the

controversial legislation passed by Parliament. The administration is empowered under

Section 144 to impose restrictions on the personal freedoms of individuals. This ensures that

the government can restrict the fundamental right to peaceful assembly provided for under

Article 19 of the Constitution if the executive magistrate considers the condition at any given

location with the potential for disruption of law and order.

The Karnataka High Court questioned the legality of Section 144 of CrPC which was

imposed in Bengaluru by the State Government which was planned for the controversial act.

It questioned the assumption of the State Lawmakers that every protest could not be turned

into violence. The right to protest is enshrined under Article 19 (1)(a) of the Indian

6 Everything you wanted to know about the CAA and NRC - India Today Insight News,

https://www.indiatoday.in/india-today-insight/story/everything-you-wanted-to-know-about-the-caa-and-nrc-

1630771-2019-12-23 (last visited Dec 26, 2019).

Constitution. It grants all citizens the right to "assemble freely and without violence."

Citizens hitting city streets across states against the Citizenship Amendment Act practice

their constitutionally guaranteed fundamental right. But when the State is arbitrarily using

Section 144 of CrPC to prohibit the gathering of protestors, it is violating their right to

protest. 7

SUGGESTIONS-

The Bill says in the declaration of objects and reasons mentions that countries like Pakistan,

Afghanistan, and Bangladesh have a state religion. As a consequence, many individuals from

Hindu, Sikh, Buddhist, Jain, Parsi and Christian sects in those countries have faced

persecution on religious grounds. As per the current Government, it forms the basis of

intelligible differentia among non-Muslim immigrants and provides the legal and

constitutional ground for keeping Muslim immigrants without legitimate documentation who

have reached India or remained in India. In creating such a differentiation, it would be

difficult to prove who, out of religious persecution or for the sake of a better economy,

entered India among the illegal immigrants. In some other countries, the government cannot

examine a few million cases to verify the claim of religious persecution.

It also means that the Citizenship Amendment Bill advances the line of argument brought

forward by Muhammad Ali Jinnah contributing to India's 1947 Partition. He created a

Muslim nation Pakistan, and therefore, Article 14 is the foundation stone of the Indian

Constitution which states not only right to equality but also somewhere freedom of religion.

Hence, the Act is an assault on Indian democracy which is affecting the secularism of India.

The following can be suggestions given for this controversial act are-

 The Government should take the advice from the judiciary before making any bill that is

related to language, religion and culture, so that it does not affects society at all.

 The Supreme Court should hear those matters urgently which are violating many provisions

of the Constitution. The present Chief Justice should not act as a remote-controlled CJI for

the ruling regime and should preside over the crucial constitutional cases.

 The use of Section 144 should be minimal by lawmakers and should only be used in

extraordinary circumstances. The present regime should not suppress the voice of dissent

who are criticizing the bill.

7 Citizenship Amendment Act: Imposition of Section 144 to prevent democratic protests smacks of colonialism;

shows inability to handle dissent, FIRSTPOST, https://www.firstpost.com/india/citizenship-amendment-act-

imposition-of-section-144-to-prevent-democratic-protests-against-law-smacks-of-colonialism-shows-govts-

inability-to-handle-dissent-7801111.html (last visited Dec 26, 2019).

 Since India is a secular nation, therefore, citizenship can’t be given on the basis of religion,

otherwise, it would destroy the constitutional fabric of the country.