The Citizenship Amendment Act, 2019 makes some modification to the Citizenship Amendment Act, 1955. In doing so, it seems to have created unprecedented levels of misgivings in the country. The unfolding events demonstrate that even in a mature democracy like India, small issues can trigger an explosive situation.
First, the necessity of such an Act can be questioned. There was hardly any demand for it as large influxes of illegal immigrants have been - all along - discouraged in India. Second, the Act has only targeted about 25447 Hindus, 5807 Sikhs, 55 Christians, two Buddhists, and two Parsees as illegal immigrants who came before December 20, 2014. The number is miniscule when compared to the 1.3 billion population of India. On the other hand, north-eastern states like Arunachal Pradesh, Mizoram and Nagaland, the tribal areas of Assam, Meghalaya, Tripura, and Manipur have been exempted from the purview of this Act. The Hindus in Assam - who have been identified to be expelled under the National Register of Citizens (NRC) exercise - cannot be allowed to stay back as Assam has been exempted from this Act. Therefore, there is a big question regarding the purpose that is to be served by the implementation of this Act.
There can be administrative ways by which illegal immigrants from Bangladesh can be driven back. With increasing prosperity in Bangladesh, the Bangladesh government can well take back its people under India’s diplomatic pressure.
CAA in Supreme Court
The Act is being challenged in the Supreme Court for violating Article 14 of the Constitution of India. The legal value of this argument is uncertain because an illegal
Muslim immigrant is not a person legally living in India who can claim the fundamental right to equality along with other communities, i.e., Hindu, Sikh, Christian, Buddhist or Parsee from the three countries of Pakistan, Bangladesh and Afghanistan. On the other hand, the Indian parliament has the supreme power of making laws with respect to the acquisition and termination of citizenship and all other matters relating to citizenship as per Article 11 of the Constitution. The Indian Parliament has exercised such a power in the past – unhindered - by making necessary amendments in the Indian Citizenship Act, 1955. However, this can be another instance of a crisis emerging from a conflict between the parliament and the judiciary if the apex court decides to review the validity of the Act or its provisions under its power of judicial review. The Act can certainly be challenged in the public domain as it was brought in without prior debate in the parliament or without putting it up for public opinion as is generally the practice.
Legal Position of Citizenship
Under Article 10 of the Constitution, every person who is or deemed to be a citizen of India will continue to be a citizen of India. Therefore, a person will continue to be citizen of India if it is found by local inquiry that he has been living in India for years even though he does not have requisite documents in his possession. His citizenship can only be terminated if he has acquired citizenship by fraud, is guilty of waging war against the State or has helped the enemy during war or has been convicted by a competent court for one year of imprisonment within five years of acquiring the citizenship of India. Thus, all other apprehensions are baseless.
The only valid reason of resentment is that during the NRC exercise in Assam, common people faced a lot of harassment in order to procure documents, which proved to be time consuming. Corruption was also reported. But now most of the Indian citizens have Aadhaar cards and voter identity cards for their identification. These documents can easily be used to record citizenship of most Indian citizens and a way out can be found for those left out. However, Aadhaar may not provide all the necessary information but it will save a lot of time and energy. Additionally, it will dispel many apprehensions from the minds of many Indian citizens, including Muslims, who are as Indian citizens as others mentioned in the Act.
It is, therefore, suggested that administrative ways should be found to solve the impasse. There’s a need to wait for the decision of the Supreme Court.
— Dr. P. K. Agrawal is a retired IAS officer who has sixty-five books to his credit including three books on the Constitution of India. At present, he is the managing partner in the New-Delhi based law firm, Vas Global.