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P: ISSN NO.: 2394-0344 RNI No.UPBIL/2016/67980 VOL-5* ISSUE-8* November- 2020
E: ISSN NO.: 2455-0817 Remarking An Analisation
The Citizenship (Amendment) Act 2019:
The Conflicting Law
Paper Submission: 16/11/2020, Date of Acceptance: 27/11/2020, Date of Publication: 28/11/2020
Jai Mala
Associate Professor,
Dept. of Laws,
University Institute of legal Studies,
Panjab University,
Chandigarh, India
Keywords: Citizenship, Religion, Protest.
Introduction
The Citizenship Act, 1955 standardizes who can acquire
citizenship and on what basis and grounds a person can acquire. If a
person born in India, by descent or resided in India for a prescribed time
etc. then he may acquire citizenship in India. Basically Citizenship
constitutes the indispensable foundational principle of democratic polity.
According to Merriam-Webster Dictionary, a citizen means a person owing
allegiance to and entitled to the protection of a sovereign state. The
population of the state is divided into two classes i.e citizens and aliens.
The question of citizenship became particularly important at the time of the
making of our constitution because the constitution sought to confer certain
rights and privileges upon those who were entitled to Indian citizenship
while they were to be denied to „aliens‟. Therefore, citizens of India have
certain rights under the Constitution which aliens shall not have.1 The
Constitution simply describes2 the classes of persons who would be
deemed to be the citizens of India at the date of the commencement of the
Constitution and left the entire law of citizenship to be regulated by some
future law made by parliament.3
On the other hand, there was a provision in the Act of 1955 that
illegal migrants were prohibited from acquiring Indian Citizenship. The
illegal migrant is the one who enters the country without valid documents
like passport, visa etc. and if enters with valid documents then stay for
longer time than permitted.4 These migrants got imprisoned or deported
under various legislations like Foreigner‟s Act, 1946, Passport (Entry into
India) Act, 1920. These Acts empowers the Central Government to
regulate the entry and exit of illegal migrants within the India. Then in 2015,
2016 Indian Central Government issued notifications where certain groups
Abstract
Concept of Citizenship is generally related with the nation and
its residents. Citizens are protected by the sovereign state and they also
enjoy the certain rights as well as they have also duties towards their
state. All over the world every nation has their own rules and criteria for
the Citizenship.
In India there is concept of single citizenship which is different
from the dual citizenship. At the time of partition and after that, large
number of Hindus and Muslims migrated to and from Pakistan.
Therefore, it was the need of the time to respond the situation created by
lots of migrants. Simultaneously, many people who were living abroad
applied for Indian Citizenship because now they had decided to live in
newly freed country. All these factors had made the matter of citizenship
very complicated. In spite of citizens we found the other people who were
treated as an illegal migrant. These illegal migrants are not treated at par
with citizens. In India Citizenship regulated by the Citizenship Act 1955.
This Act of 1955 provides five different ways to acquire citizenship in
India those are by Birth, by Descent, by Registration, by Naturalisation
and by incorporating into the territory of India. Further this Act was
amended in 2004 and Once again, this Act was amended in 2019 but in
this amendment illegal migrant from six different religions such as
Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan,
Bangladesh and Pakistan to eligible for citizenship in India. This
amendment resulted into various agitations and protest against the
Government because the Muslim migrant were not included in it. In this
research paper author would like to overview the Act with its pros and
cons.
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of illegal migrants are exempted from falling into the
provisions of above mentioned Acts of 1920 and
1946. 5
Aim of the Study
Recently in India there was controversy on
the Citizenship (Amendment) Act, 2019. Therefore,
author tried to explain the objective of the Act and it
impact on the society.
Review of Literature
Hilal Ahmad (2019) this research paper
explained that The Citizen Amendment Act 2019 is
the politically motivated phenomenon that offer
citizenship to non-Muslim community from three
Muslim majority countries (Afghanistan, Bangladesh
and Pakistan). This research work pointed out that
Indian polity is experiencing Hindutav
Constitutionalism. Further this also draws a
conclusion that the politically motivated ambiguities
that have been arising in the Citizen laws since 1980‟s
are now the reality of the present and explained that
how the majoritarianism using democratic institutions
against the secular character of the Constitution.
Narender Nagarwal (2019) this research
work is criticizing the Citizen Amendment Bill that this
bill is against the fundamental values and basic
structure of the constitution by offering citizenship to
non-Muslim communities. The bill is fundamentally
impractically because it is basis only on the religion
that is in contradiction with Articles 14, 21, 29, 30,
51C and 253.
Ram Madhav (2019) this research article
generally focused on the need of the solution of illegal
immigration to India since independence. Further the
article explained that refugees have been
continuously coming to India since long time. India
responding in responsible manner but this time Govt.
is trying to give constitutional status by giving them
Citizenship. The article explains that the Act is not
against the secularism because it offering persecuting
minorities in the three countries.
Economic and Politically Weekly (2019) this
research paper explains that authoritarian attitude in
India and this is against the minority. The paper
argued that India is facing the problem of identity
crisis and identity based politics which is not healthy
for the Indian democracy. The Indian politics and
society are experiencing a new kind of politics that is
going to divide the country on the communal lines.
The Citizen Amendment Act is the propaganda of the
government to find out the issue on this.
M.P. Jain (2010) in his book gives the brief
introduction to the Indian Constitution. It also talks
about various aspects of Constitution by giving
different comments and views. It talks about
Fundamental Rights, Fundamental Duties and
Directive Principles. There are number of cases on
every point. For example Cases, where there have
been rights to free and compulsory education, rights
related to equality, inclusion and non-discrimination.
Citizenship Act 2019
Parliament enacted a legislation i.e the
Citizenship Act, 1955 in which elaborate provisions for
the acquisition and termination of citizenship. To get
the complete picture of Indian Citizenship Act the
provisions of this Act are read with the provisions of
Part II of the Constitution.6 Entry 17, list 1 of seventh
Schedule also discusses about the Citizenship. It is
found that massive illegal migration takes place from
Bangladesh. therefore, the Act of 1955 was amended
in 2004 i.e The Citizenship (Amendment) Act,2004
this amendment defined a notion of „illegal migrant7‟
under section 2(1)(b). According to this amendment
illegal migrants were ineligible for citizenship by
registration and by naturalisation. This definition of
illegal migrants was already in 1955 Act but 2004
amendment disallows the citizenship by birth of
children born in India if either parent is an illegal
immigrant. This amendment also introduced the
notion of Overseas Citizen of India for citizens of other
countries who are of Indian origin. The Act also
mandated the Government of India to Construct and
maintain a National register of Citizens.8 Another
amended was in 2005 this amendment introduced the
concept of Overseas Citizenship of India which most
people mistakenly refer to as dual citizenship.8
In the amendment of 2004, the notion of
illegal migrants was added and they barred from
becoming an Indian citizenship through registration9
or naturalisation10 The Foreigners Act and the
Passport Act debar such a person and provide for
putting an illegal migrant into jail or deportation. This
Act was further amended in 2015 and an exception
was made where the minority communities of
Bangladesh, Pakistan and Afghanistan who were
compelled to seek shelter in India due to religious
persecution or fear of religious persecution they are
not classified as an illegal migrant and remain eligible
for citizenship. In 2016 The Citizenship Amendment
Bill (CAA Bill) introduced to provide Indian citizenship
to the illegal migrants who entered India on or before
31st December 2014.11 In 2019 the Citizenship
(Amendment) Bill, is being introduced in Lok Sabha
and then Government enacted the legislation the
Citizenship Amendment Act, 2019 and this Act
“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 there under, shall not be treated as illegal
migrant for the purposes of this Act;”.11 Section 6
B12 is also inserted and third schedule is also
amended of the principal Act 195513. This Act also
has certain exceptions such as The Act adds that the
provisions on citizenship for illegal migrants will not
apply to the tribal areas of Assam, Meghalaya,
Mizoram, and Tripura, as included in the Sixth
Schedule of the Constitution. There is also addition of
provision related to OCI (Overseas Citizenship of
India) Cardholder. They can get registered and can
get the benefit to travel into India work here and can
do study. But if they found violating any provisions
then there OCI Registration gets cancelled.13
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The legislation of 2019 applies to those who
were “forced or compelled to seek shelter in India due
to persecution on the ground of religion”. It aims to
protect such people from proceedings of illegal
migration. This amendment relaxes the requirement of
naturalization from 11 years to 5 years as a specific
condition for app licants belonging to these six
religions. As well as the cut-off date for citizenship is
December 31, 2014, which means the applicant
should have entered India on or before that date. This
Act also says that on acquiring citizenship: Such
persons shall be deemed to be citizens of India from
the date of their entry into India, and all legal
proceedings against them in respect of their illegal
migration or citizenship will be closed. This Act also
says people holding Overseas Citizen of India (OCI)
cards – an immigration status permitting a foreign
citizen of Indian origin to live and work in India
indefinitely – can lose their status if they violate local
laws for major and minor offences and violations. This
act also contains certain exception such the
provisions on citizenship for illegal migrants will not
apply to the tribal areas include Karbi Anglong (in
Assam), Garo Hills (in Meghalaya), Chakma District
(in Mizoram), and Tripura Tribal Areas District. It will
also not apply to the areas under the Inner Line
Permit under the Bengal Eastern Frontier Regulation,
1873.
There is protest against the implementation
of this Act on the ground that word religious
persecution is not defined in the Act of 2019. Further
in this amendment there is another opinion that only
six communities are included and Muslim community
is not in the list. This made this Amendment
exclusionary, poisonous and discriminatory in nature.
It is violating Article 14. 14 and Article 21. 15 of
Indian Constitution which is available to all the
persons.16 As Article 14 guarantees equality to all the
persons, including citizens and foreigners. It
authorizes laws to create difference among different
groups of people only if it serves a reasonable
purpose.17 But the question arises whether these
differential factors of treating the illegal migrants
differently could serve a reasonable purpose. Again,
there is another issue that only three countries
Afghanistan, Pakistan and Bangladesh are listed for
the purpose of religious persecution.18 There is no
reason why Afghanistan has been added to this unlike
Pakistan and Bangladesh as there were lacs of
citizens residing at the time of Undivided India. But
also there is no valid point that why these migrants
are being treated differently from neighbouring
countries like Srilanka, Myanmar.19 This Act also
protest on the ground that in north-east area because
Most of them fear that if implemented, the Act will
cause a rush of immigrants that may alter their
demographic and linguistic and cultural
uniqueness .the rest of the country in state of Kerala,
west Bengal, Kerala, West Bengal and Delhi for
excluding the Muslim from those six community and it
is against the basic structure of constitution.
Conclusion
This citizenship Act resulted in to various
protest because there are other countries which are
not included in it such as Sri Lanka has history of
persecution of religious minority such as the Rohingya
Muslims and Tamil Elams they are fleeing and
seeking shelter in India. This amendment mentioned
only three countries but there are other communities
in these countries such as Ahmadiyya Muslims in
Pakistan and theses are considered non-Muslims and
are facing persecution further the Act of 1955 provide
the Central Government to cancel registration of
overseas Indian in various grounds it can be argued
that it is excessive delegation of powers by
legislature. Therefore, society has divided into two
groups one groups opined that this amendment is
against the rule of equality and destroying the basic
structure of constitution and other group is in favour of
this amendment. Various litigations have filed on this
amendment and waiting for the view of Honourable
Supreme court on this amendment.
References
1. The Constitution of India, Article 15, 19,29, 30,
58(1)(a), 67(3)(a), 124(3), 217(2) 76(1), and 157
but the rights guaranteed by Article 14 and 21 are
also available to aliens.
2. The Constitution of India, Part-II Article 5 to 11
3. Durga Das Basu, Introduction to the Constitution
of India, 79 (22nd edition 2015)
4. Section 2(1)(b) of the Citizenship Act, 1955.
5. G.S.R. 685 (E) And G.S.R. 686(E), Gazette of
India,
https://egazette.nic.in/WriteReadData/2015/1657
55.pdf.
6. The Constitution of India, Article 5(a), (b)(c), 6,7
and 8
7. An illegal migrant in India is a foreigner who has
entered India either without valid documents or
who initially have a valid document, but has
overstayed beyond the permitted time as per the
provision of the amendment are not eligible for
citizenship by registration or naturalisation. They
are also liable to be imprisoned for 2-8 years and
fined The National Register of citizens (NRC) is a
register of all Indian Citizens whose creation is
mandated in amendment Act 2004. Its purpose is
to document all legal citizens of India so that the
illegal migrants can be identified and deported. It
has been implemented in Assam in 2013-2014
and Government is planning to implement it for
the rest of the country in 2021
8. Id p82
9. The Citizenship Act, 1955 section 2 (1).
10. Where an application is made in the prescribed
manner by any person of full age and capacity 3
[not being an illegal migrant] for the grant of a
certificate of naturalisation to him, the Central
Government may, if satisfied that the applicant is
qualified for naturalisation under the provisions of
the Third Schedule, grant to him a certificate of
naturalisation.
11. The Citizenship Amendment Bill, 2016,
https://www.prsindia.org/sites/default/files/bill_file
s/Joint%20commitee%20report%20on%20citizen
ship%20bill.pdf.
12. Supranote 8, section 2
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13. 6B. (1) The Central Government or an authority
specified by it in this behalf may, subject to such
conditions, restrictions and manner as may be
prescribed, on an application made in this behalf,
grant a certificate of registration or certificate of
naturalisation to a person referred to in the
proviso to clause (b) of sub-section (1) of section
2. Migrant should fulfilment of the conditions
specified in section 5 or the qualifications for
naturalisation under the provisions of the Third
Schedule, a person granted the certificate of
registration or certificate of naturalisation under
sub-section (1) shall be deemed to be a citizen of
India from the date of his entry into India.
14. Provided that for the person belonging to Hindu,
Sikh, Buddhist, Jain, Parsi or Christian
community in Afghanistan, Bangladesh or
Pakistan, the aggregate period of residence or
service of Government in India as required under
this clause shall be read as “not less than five
years” in place of “not less than eleven years”.
15. Report of the Joint Committee on Citizenship
(Amendment) Bill, 2016, Joint Parliamentary
Committee, Lok Sabha 2019,
https://www.prsindia.org/sites/default/files/bill_file
s/Joint20%committee%20report%20%Citizenship
%28A%29%20bill.pdf .
16. Article14 of the Indian Constitution states that
The State shall not deny to any person equality
before the law o the equal protection of the laws
within the territory of India.
17. Article21 of the Indian Constitution states that
there must be protection of life and personal
liberty. No person shall be deprived of his life and
personal liberty except according to the
procedure established by the law.
18. The Poisonous Law: The Citizenship Amendment
Act 2019”
https://www.researchgate.net/publication/337948
797_The_Piousnous_Law_The_Citizenship_Amn
dment_ACT_2019State of West Bengal v. Anwar
Ali Sarkar, AIR 1952 SC 75
19. The Citizenship Amendment Act, 2019 Explained
with Pros and …
https://www.writinglaw.com/citizenship-
amendment-act-2019-explained
20. Article 9 of the Constitution of the Democratic
Socialist Republic of Sri Lanka states that the
Republic of Sri Lanka shall give to Buddhism the
foremost place and accordingly it shall be the
duty of the State to Protect and foster the Budha
Sasana while assuring to all religions the rights
granted by Article 10 and 14 (1)(e).
21. Article 361 and 362 of the Republic of Myanmar
states that it will recognize Christianity, Islam,
Hinduism and great position to Buddhism as it is
professed by Majority of the Union.