Posted in:
21 Dec, 2019
Posted in:
21 Dec, 2019

Chief justice of India on hearing the petition on Citizenship Amendment Act, 2019 on 18th December refused to stay the act and asked the Central Government through Attorney General of India to inform the public about the aim and object of this Act. Further CJI said, “There is need to publicize why the Act (CAA) is passed”. CAA which amended the Citizenship Act, 1955 received the assent of the President on the 12th December, 2019. After passing of this act massive protest and violence were carried down in Bengal, Assam and in Delhi. Several people put their views against citizenship law and false propaganda has been constructed against this law. Opposition argues that Constitutional Amendment Act in the present form goes against constitutional vision and is unreasonable and arbitrary.  I have a dissenting view to such arguments and as a Student of Constitutional Law I feel disheartened by the wrong interpretation of the Constitution of India.

Let’s understand CAA?

There is no question of arbitrariness or reasonable classification involved prima-facie in this case, However, the object sought by this Citizenship Amendment Act, 2019 is to provide remedy to the minorities who are victim of religious persecution aftermath of Partition of India and new nation Pakistan declared itself as Islamic Country. And further this Act aims to provide relaxations and inclusion in the Citizenship Act, 1955. This Act does not talk about exclusion of Muslim as Muslim were not persecuted in Pakistan. This Act recognizes the right of Non-Muslims who came to India due to religious persecution from Bangladesh, Pakistan and Afghanistan. Even Nehru, Rajendra Prasad, Sardar Patel and Mahatma Gandhi supported the cause and citizenship rights in India for the people who migrated to India from Pakistan aftermath religious persecution. However, due to appeasement politics this legislation was deliberately delayed for 69 years.

This Amendment adds proviso in section 2, in sub-section (1), in clause (b) in the Citizenship Act, 1955.

And the Proviso reads as “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of 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 the purposes of this Act;”

Further, new section 6B added in the Citizenship Act, 1955 which states that Section 6B (3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him: Provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section.

Further it adds in the proviso that who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application.

In section 6B (4) Nothing in this section shall apply to tribal area of Assam, Meghalaya, Manipur, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.’

Indian Constitution and Citizenship

Now, understand the provision of Law with regard to Citizenship in the Constitution of India. Part two and Article-5 to 11 of the Constitution of India deals with Citizenship. Article 5 says Citizenship at the Commencement of Constitution for those who has his domicile in the territory of India. Article 6 Says Rights of citizenship of certain persons who have migrated to India from Pakistan before the 19th day of July 1948.

Then, a valid question arises what about the victim of Partition those to choose to stay in Pakistan when Pakistan became an Islamic State and religious persecution started to the minorities. When situation became unbearable for those minorities in Pakistan they started migrating to India as this country was their last hope as they all belong to citizen of Undivided India.  So, what about the Citizenship of those people who came to India in 1950 from Pakistan or say in 1971 from Bangladesh as a victim of religious persecution to Minorities?

Article 11 says Parliament to regulate the right of citizenship by law but Indian government took so many years to pass this legislation for granting the Citizenship and finally it is being done through Citizenship Amendment Act, 2019. So, Citizenship is not the subject of Part-III of the Constitution rather it is subject to Part-II and Parliament having the power to regulate the Citizenship laws therefore it is just and reasonable.

Union List and Citizenship

Further, Article 246 (1) of the Constitution of India, States that

(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List).

Under Union list, Item number 17 says “Citizenship, naturalization and aliens” which means parliament has exclusive power with respect to Citizenship Law.  Parliament being competent authority is entitled to make Citizenship Amendment Act, 2019 which is absolutely just and reasonable and under scope of its constituent power.

Nehru-Liaquat Pact, 1950

The treaty was signed in New Delhi by the then Prime Minister of India Jawahar Lal Nehru and the Prime Minister of Pakistan Liaquat Ali Khan on April 8, 1950.The Nehru-Liaquat Pact, 1950 was a bilateral treaty between the  India and Pakistan, where refugees were allowed to return to dispose of their property, abducted women and looted property were to be returned, forced conversions were unrecognized, and minority rights were confirmed.

Having said that these people who came through this pact also did not get their due citizenship rights before this amendment. Citizenship Amendment Act, 2019 would definitely recognize them and provide them with Indian Citizenship which was long overdue. So, this Act is not against Muslim rather than for including the victim of religious persecution aftermath the partition of India.

Doctrine of Equality and Citizenship Law

Though, this Equality doctrine is not directly in question or in conflict after the passing of Citizenship Amendment Act, 2019. However, in a larger context we can discuss provision of Article 14 of the Constitution of India which states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.  However, Article 14 permits reasonable classification of persons, objects, transactions by the State for the purpose of achieving specific ends that help in the development of the society. “intelligible differentia” test which means a factor that distinguishes or in different state or class from another which is capable of being understood. In the Case of West Bengal v. Anwar Ali Sarkar (1952 AIR 75) Supreme Court held that the differentia or classification must have a rational nexus with the object sought to be achieved by the statute. Therefore, in the present Citizenship Law, this classification to Minorities who came from Pakistan, Afghanistan and Bangladesh due to religious persecution pass this test of reasonable classification.

In the light of Citizenship amendment and arguments stated, I sum up by saying that Justice is the constant and perpetual will to allot to every man his due. And Present Citizenship Amendment Act, 2019 was long overdue to correct the injustice that is done to the victims of partition, religious persecution to the minorities living in Pakistan, Bangladesh and Afghanistan who migrated to India and being denied with Citizenship for several decades. Therefore, parliament being competent authority to make this law is justified move and hence no question of Arbitrariness or violation of any other test laid down under Article 14 comes into picture. Passing of Citizenship Amendment Act, 2019 is fair and reasonable in the eyes of law as the object of the Act is based on reasonable classification.

(Abhinav Kumar is an Advocate in the Supreme Court of India & works in the area of Law and Policy. He is alumni of NLU Odisha and LL.M from MNLU Mumbai and views expressed are his personal. (Email Id- )