TITLE – The CAA Conundrum: Context, Clarity and Consequences

ABSTRACT

The populace of a nation is categorized into Citizens and Non- Citizens ( Aliens). Gaining citizenship in India is intricate as the Constitution lacks definite or comprehensive provisions regarding Citizenship. The aspect of Citizenship, which should have normally been dealt by the legislature or the parliament, been taken into consideration by the Constitution of India since India has faced partition in two waves, unfortunately on the basis of religion. India, with its vast population, harbours numerous illegal immigrants who have been compelled to leave their native lands due to religious persecution. This paper aims to show the changes and measures which have been introduced to determine the status or position of such illegal immigrants which is, thus, the main reason for the enactment of the Citizenship Amendment Act (CAA), 2019 which amends the Citizenship Act of 1955. The chaos and protest movements due to this amendment and the pavement of an easier way to the Indian Citizenship for only six religious communities from 3 neighbour  nations has been a matter of grave concern. Throughout this paper, the author wants to throw lights on the motive of CAA while scrutinizing the background and also the confusions surrounding it. The primary endeavour of this study is to promote awareness about “What CAA is and what it is NOT!” in order to douse the terror in the minds of the people. This article, in its wider sense, wants to sustain the notion that India is a responsible society which strongly opposes discrimination, hatred and fear.

Keywords: citizen, religious persecution, illegal immigrants, citizenship act of 1955, citizenship amendment act.

INTRODUCTION

A citizen of a State is a person who enjoys full civil and political rights.[1] Citizens are those people who have got the official and permanent citizenship of the State and they can be differentiated from non citizens on this context of citizenship. Citizenship comes with various benefits as outlined in the Constitution. Citizenship is a legal status of personhood and membership in a sovereign state.[2] But the provision relating to citizenship in India has not been meticulously and permanently defined in the Constitution. Part 2 of the Indian Constitution provides the descriptions of persons who would be considered citizens of India at the commencement of the Constitution, the 26th Jan, 1950, and leaves the entire law of citizenship to be regulated by law enacted by the parliament. The Citizenship Act of 1955, has been made by the parliament in this context of citizenship by exercising its power from Article 11. The Citizenship Act of 1955 provides with provisions for acquisition and termination of citizenship after the commencement of the Indian Constitution. But under this Act, migrants from Hindu, Sikh, Buddhists, Jain, Parsi or Christian communities from Afghanistan, Pakistan, or Bangladesh who entered into India, because of religious persecution, without valid travel documents or the validity has been expired are considered as illegal migrants and thus ineligible to apply for Indian citizenship.[3] The “illegal migrants” who have entered into India up to the cut off date of 31st Dec, 2014 need a special method to govern their citizenship matters and due to this purpose the Central Government shall grant the certificate of registration or certificate of naturalisation subject to such conditions and restrictions. This act has gone through many amendments and the recent which is The Citizenship Amendment Act, 2019 is of immense importance and has been a burning topic till date due to its various misinterpretations as it gives citizenship of India only to the abovementioned communities from those 3 particular countries even if they have entered India without valid documents.

 RESEARCH  METHODOLOGY

This is a qualitative research to explore the perceptions and interpretations of the Citizenship Amendment Act, 2019. This method has been chosen to gain in depth insights into the complex socio political dynamics surrounding the CAA.

DATA COLLECTION – Data have been  collected through observation. Thoughts and ideas of leaders , human rights groups, individuals getting impacted from the CAA, law professionals and experts in constitutional law with knowledge of this topic. Also, secondary sources like newspaper articles, interviews of prominent individuals, legislative texts, social media posts regarding CAA, The Constitution of India and other books were also taken into consideration.

Throughout the research, focus has been given to the facts and truths of the amendment act and no rigid and prior opinion of the researcher has been included

LAWS FOR CITIZENSHIP

Citizenship in India is a multifaceted concept intricately woven into fabric of the nation’s legal, social, and historical landscape. It is governed by two ways – one, Constitutional provisions and two, Citizenship Act of 1955.

CONSTITUTIONAL PROVISIONS

Part 2 of the Constitution that is Article 5 to 11, delineate the provisions regarding citizenship, including the acquisition, renunciation and termination of citizenship at the commencement of the Constitution which is on Jan 26, 1950.

A person can get Citizenship by domicile if he satisfies two conditions- he must, at the commencement of the Constitution, have his domicile in the territory of India and , such person must fulfil any one of the 3 conditions  …which are – he was born in India or either of his parents was born in India or he must have been ordinarily resident in the territory of India for not less than 5 years immediately before the commencement of the Constitution.[4] A minor or married woman is not an independent person.[5] Therefore, the domicile of an infant generally follows the domicile of his father[6], while a married woman takes the domicile of her husband.[7] Persons who have migrated from Pakistan to India have been classified into 2 categories for the purpose of citizenship. One , those who came to India before July 19, 1948 and two, those who came to India on or after July 19,1948 – the date on which the permit system for such migration was introduced. The persons who have migrated to India from Pakistan shall be deemed to be a citizen of India at the commencement of the constitution, provided he or either of his parents or any of his grandparents were born in India and apart from the above condition, fulfils one of the two conditions …that is – if he has migrated to India before July 19,1948, he must be ordinarily residing in India since the date of his migration or, if he has migrated on or after the date, he must be registered as a citizen of India by a Government Officer.[8] Article 7 has an overriding effect on both the article 5 and 6 which means a person if migrated to Pakistan after March 1,1947, ceases to be a citizen even if he has obtained citizenship under article 5 or by article 6.[9] This proviso underscores the principle of single citizenship thereby maintaining the integrity and sovereignty of the Indian nation- state. There are also grounds for granting citizenship to Persons of Indian Origin (PIO) residing outside India.[10]

Continuance of the rights of citizenship – As provided by article 10, persons who has been made as an Indian Citizen by the provisions of the Government of India Act, 1935 or by any law made before the commencement of the Constitution, shall continue to be a citizen of India however, subject to the provisions of any law that may be made by the Parliament.

In absence of any express law made under article 11, the right of Citizenship cannot be destroyed by an Act made for a different purpose.[11]

CITIZENSHIP ACT, 1955 and its Amendments

The Citizenship Act of 1955 is an important legislation in India to ensure the rights and duties of a citizen. This Act is also popularly known as Indian Nationality Law. Parliament, in exercise of the power given to it under article 11 of the Constitution, has passed the Citizenship Act, 1955, making provisions for the acquisition and termination of Citizenship after the commencement of the Constitution. The provisions provide 4 modes of getting citizenship which are— Citizenship by Birth,[12] Citizenship by Descent[13], Citizenship by Registration[14] and Citizenship by Nturalisation[15].

Like most of the Acts, this Act has also been amended many times  … First in the year 1986, then 1992, 2003, 2005, 2015 and 2019(recent).

The controversial Amendment which is being talked about now came in Dec 2019.Before going into the 2019 amendment; let’s look into the changes that were made in the Citizenship Act by all previous amendments.

As per the original section 3 of the Citizenship Act of 1955, individuals born in India on or after January 26, 1950 can acquire Citizenship if either of the parents is a citizen of India the time of birth. For example- A , a citizen of India , marries B, who illegally entered India without any valid documents , now their child will get Indian Citizenship since his father is an Indian citizen. THIS WAS THE SITUATION IN 1955. After, the 1986 amendment (to section 3), which is the first amendment , those who were born in India on or after Jan 26, 1950 but before July 1st ,1987 shall be deemed as Indian Citizen but it was no longer needed to be born in India to get Indian  Citizenship. At the time of birth, either one of the parents has to be an Indian citizen for the individual to become a citizen of India.

Situation changed after the 1992 amendment, which amended section 4 of the original Act , section 4 provides provision for citizenship by descent. It says that any person born outside India is considered a citizen of India by virtue of citizenship by descent if either of his parents was a citizen of India at the time of his birth. By way of this amendment, Gender discrimination has been removed, earlier as per the 1955 Act, only father’s citizenship was considered but by this amendment, either of the parents that is mother or father can be a citizen by descent and if they were a citizen by descent then their children will get citizenship by descent. But there are certain other conditions to be meet such as – the birth must have been registered at an Indian Consulate within one year or either of his parents is, at the time of his birth, in service under Government of India.[16]

By the 2003 Amendment act, many changes had been made. Such as,

  1. A person can get citizenship under section 4 if his birth has been registered at an Indian consulate within one year of its occurrence or the commencement of the Citizenship(Amendment) Act, 2003, or whichever is later or , been registered with the permission of the Central Government in case of the expiry of the said period. No such birth shall be registered unless the parents of such person declare that the minor does not hold the passport of another country.
  2. It allowed the Government of India to build a National Register of Citizens(NRC) and for that purpose establish a National Registration Authority.
  3. It introduced the term “illegal migrant” which means ‘a foreigner who has entered into India without a valid passport or other travel documents or if entered with such documents, remained therein beyond the permitted period of time.[17]
  4. It introduced the concept of OCI that is the Overseas Citizen Of India- that means is a person is of Indian origin, he/she can visit India without visa.
  5. Another important aspect is the introduction of NRC which permitted the Government to compulsorily register all Indian citizens and issue them identity cards, NRC was only implemented in the state of Assam under the direction of the Supreme Court.

Illegal migrants were not allowed to get citizenship by registration or by naturalisation- also if the children are born after 2004 and one of the parents is an illegal migrant, he will not be entitled for citizenship.

The Citizenship Amendment Act of 2005 introduced a dual citizenship system allowing individuals from 16 countries other than Pakistan and Bangladesh, to obtain dual citizenship. The Citizenship Act of 2015 modified the provisions pertaining to the OCI, it introduced a new scheme called the Overseas Citizen of India Cardholder by merging persons of Indian origin and the OCI card schemes. This amendment stipulates that when an individual renounces their overseas citizenship, their minor child and spouse of foreign origin shall automatically lose their status as an Overseas Citizen of India.

Now, the most important and recent amendment which is the Citizenship Amendment Act, 2019 modifies the definition of “illegal migrant” in section 2 of the act. According to this amendment, any person belonging to HINDU, SIKH, BUDDHIST, JAIN, PARSI or CHRISTIAN community from AFGHANISTAN, PAKISTAN or BANGLADESH who entered India on or before the 31st December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant.[18]

So, This Act separates refugee and asylum seekers in India based on two factors –

  • Where they are from?
  • What is their religion?

People belonging to only those abovementioned groups are not treated as illegal migrant and are placed on a fast track to citizenship.

CITIZENSHIP AMENDMENT ACT – clarity and criticisms

The Citizenship Amendment Bill(CAA Bill) was first introduced in 2016 in Lok Sabha by amending  the Citizenship Act of 1955. This bill was referred to a Joint Parliamentary Committee, whose report was later submitted on Jan 7, 2019. The Citizenship Amendment Bill was passed on January 8, 2019, by the Lok Sabha which lapsed with the dissolution of the 16th Lok Sabha. The Bill was introduced again on 9th December 2019 by the Minister of Home Affairs Amit Shah in the 17th Lok Sabha and was later passed on 10th Dec 2019. The Rajya Sabha also passed the bill on 11th December 2019. The CAA was passed to provide Indian citizenship to undocumented immigrants who entered India on or before 31st December 2014. According to this amendment, any person belonging to HINDU, SIKH, BUDDHIST, JAIN, PARSI or CHRISTIAN community from AFGHANISTAN, PAKISTAN or BANGLADESH who entered India on or before the 31st December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant.

For these specified classes of undocumented immigrants, the number of years of residency has been relaxed from 11 years to 5 years( 2015 to 2019) thus making it easier for them to get citizenship of India by the process of Naturalisation.

What the CAA actually wants to do ?

This the most important and controversial question regarding the CAA, since there are a number of interpretations and hence confusions in the minds of common people. Due to misconceptions of this CAA and negative influences coming from some political leaders, minds of common man are full of fear and turmoil. But there is nothing to worry about, since this act only aims to make the process of granting of citizenship easier for people who were forced to seek shelter in India due to religious persecution in their homeland. It aims to protect such people from proceedings of illegal migration.

Historically, India has been a welcoming home to people across faiths fleeing persecution, from Parsis, centuries ago, to Tibetans (from 1959), Bengalis from Bangladesh (in 1971), and Afghans  across 3 wars, etc. But India lacks a national refugee law and is also not a signatory to the UN 1951 Refugee Convention.

Criticisms/ Problem issues and explanations –

  1. This act sparked widespread controversy and protests across India, with the critics arguing that it is discriminatory and violated the Article 14 of the Indian Constitution. The question which has been raised by the people is that – whether a secular country like India which has no official religion can exclude a particular religion on the basis of citizenship, we know that Pakistan , Afghanistan and Bangladesh are all Islamic countries by their constitution and as per certain reports , the religious  minorities from these countries face extreme hatred and are forced to get converted to Islam, as a result they escape from these places and seek shelter in India. Since the discrimination is reasonable, CAA is not a violation of article 14.
  2. Critics of CAA argued that it is Anti- Muslim, since, it excluded the Rohingias in Myanmar, Shia, Balochi and Ahmadiya Muslims in Pakistan and Hazaras in Afghanistan and Shri Lankan Tamils who also face religious persecution. But this is not the case, there are certain arrangements made for persecuted Muslims too to grant citizenship which is considered on its merits and circumstances. Muslims can also get Indian citizenship in the same way singer Adnan Sami, for example, applied for citizenship. Also, it must be noted that even the non muslim minorities shall not be granted Indian citizenship automatically. They also need to fulfil conditions specified in the Third Schedule to the Citizenship Act, 1955, namely, the good character requirement as well as physical residence in India.[19]
  3. Issues faced by the North Eastern states – There exists a different problem altogether, for example in Assam which is a border state , is home to a large number of Bangladeshis ,who came there after 1971 war, as refugees. The issue concerning the people of Assam is not rooted in religious aspects but rather in the segregation of the outsiders who arrived after 1971 and that it particularly affects indigenous culture.

In the case of Tripura, the refugees were almost equal to or even more than the local people, so, Tripura which is a tribal state, also opposing CAA. The agreement called the Assam Accord, 1985 promised to find and send back, or put in detention camps, all those people who came to Assam after March 24th, 1971. But, the present CAA has made the cut off date as 2014 which means that thousands of non- Muslim foreign nationals will be legally allowed to settle in the state.

The supporters of CAA argues that CAA does not dilute the sanctity of the Assam Accord as far as the cut-off date of March 24, 1971, stipulated for the detection or deportation of illegal immigrants is concerned. Also, CAA is not Assam centric as it applies to the whole country and it is not against the National Register of Citizens (NRC). Moreover, there is a cut-off date of 31st December, 2014 and the benefits under the CAA will not be given to members of the religious minorities who came to India after this date.

Apart from these above mentioned explanations of criticisms to CAA, another reason for including those specific religions can be like, all these religious communities has civilizational ties with India and the circumstances in which a they had been partitioned from India has always placed them in a weak situation ever since the partition took place. AND regarding not including any other countries other than Pakistan, Bangladesh and Afghanistan, the reason may be that the Government wants to focus on only these countries at present or inclusion of more countries may make the process of granting citizenship complex. Also, we can deal with other countries separately, if the need arises in future.[20]

As a consequence of this CAA, around 237 petitions have been filed before the Supreme Court by the state of Kerala, the Indian Union Muslim League, Democratic Youth Federation of India, All Assam Students’ Union and others.

Nation-wide protests have been since the enactment of CAA bill has came into play starting from the North-east itself. Various student unions of the North East like All Assam Students Union (AASU) and North East Students’ Organisation (NESO) did not only take the streets but also voiced out their protest through Social Media services provided by Facebook, Twitter, and Instagram. Soon the #NOCAB became trending on Twitter and Instagram, respectively. Following which, the country capital – New Delhi also saw an uprising by various left organisations and student union led by Jawaharlal Nehru University Student Union (JNUSU) and Jamia Milia Islamia University. Police Brutality came into light on the students of Jamia Milia Islamia, New Delhi and Aligarh Muslim University, Aligarh, Uttar Pradesh. Since then, various students led organisations such as Student Federation of India, All India Student Association, Pinjra Tod and other independent communities and individuals took the streets to protest against such incidents. There was an active role of Social Media Apps such as Facebook, Twitter, and Instagram into creating awareness about the issue, advocating for one’s rights and organizing protests.[21]

SUGGESTIONS

  1. It has been suggested to follow the rules which have been notified by the government and work accordingly.
  2. Indian minority groups are suggested not to panic since CAA is no going to snatch their citizenship.
  3. The applicants must check the authenticity of their documents before submitting.
  4. Every educated person should take actions in order to remove the clouds of misunderstandings regarding the Citizenship Amendment Act, 2019 from the minds of those who are in bewilderment.
  5. Also, the government should work further to make new policies or acts which would be more inclusive in nature and give citizenship to more people in need , thus , upholding the humanitarian principles of India.

CONCLUSION

The nation known for its vibrant democracy and responsible society which focuses on peace and hospitality is now in fear and confusion due to CAA – such fears in the minds of common man is totally superfluous. CAA aims to grant citizenship not to take citizenship. It is in the culture of our country to give protection to those who come to us in need, the present CAA is just a reflection of our culture. As the dust settles on the contentious debate surrounding this polarizing legislation, one thing remains clear : the need for a more inclusive law dealing with immigration policy in India. As of now, the present CAA will prove to be of great benefit for the entire nation and will shape India’s socio- political aspects for the imminent future.

 By Bandhani Ghosh

COLLEGE NAME – Shyambazar Law College


[1] Dr. J.N. Pandey, Constitutional Law of India 45 (Central Law Agency 2023). 

[2] Hannah Mejorada Residency  vs  Citizenship, Global Residence Index (December 5, 2023), https://globalresidenceindex.com/

[3] The Citizenship Act,1955, § 5, No. 57, Acts of Parliament, 1955(India).

[4] India const. art.5.                                                                           

[5] Dr.j.n. pandey, constitutional law of india 47(Central Law Agency 2023).

[6] Naziranbai v. State of M.P, AIR 1957 MB 1

[7] Karimunissa v. State of M.P., AIR 1955 Nag. 6.

[8] India const. art.6.

[9]  India const. art.7.

[10] India const. art. 8.

[11] Ebrahim Wazir v. State of Bombay, AIR 1952 SC 229.

[12] The Citizenship Act, 1955, § 3, No. 57, Acts of Parliament, 1955(India).

[13] The Citizenship Act, 1955, § 4, No. 57, Acts of Parliament, 1955(India).

[14] The Citizenship Act, 1955, § 5, No. 57, Acts of Parliament, 1955(India).

[15] The Citizenship Act, 1955, § 6, No. 57, Acts of Parliament, 1955(India).

[16] The Citizenship Act, 1955, § 4, No. 57, Acts of Parliament, 1955(India).

[17] The Citizenship Act, 1955, § 2, No. 57, Acts of Parliament, 1955(India).

[18] The Citizenship Act, 1955, § 2,No. 57, Acts of Parliament, 1955(India).

[19] CITIZENSHIP Amendment ACT (CAA), 2019- Bill Explained in Detail for UPSC, https://www.byjus.com (last visited April 11, 2024).

[20] Ibid.

[21] Anushka Bhilwar, Social Media and Protest: A Case Study on Anti CAA Protest in India, 2, 2 (2021), https://www.dpublication.com/wp-content/uploads/2021/03/16-225.pdf