CITIZENSHIP AMENDMENT ACT: A MILESTONE OR A MISTAKE?



The much-heated topic in the country a couple of months ago was regarding citizenship. The foremost thing that happened after India got its independence was partition, which cause the displacement of people leading to violence and homelessness. To overcome this, the Constitution of India in Part- II provides for provisions for citizenship from Article 5-11 and observed singular mode of citizenship, i.e. national citizenship to all its citizens.[1] Under Article 11, the parliament has the power to enact legislation governing citizenship specifically with respect to the acquisition, loss, and other matters of citizenship while following the provisions laid down in the constitution. Therefore to provide proper framework for determining citizenship as per the provisions of the constitution, The citizenship Act, 1955 was enacted by the parliaments which were later supplemented by the citizenship rule, 1956. The details of legal Indian citizens were recorded in the National Register of Citizens (hereinafter referred to as “NRC”) after the 1951 Census of India maintaining the demographic information of all those people who were eligible to be the citizens of India.[2] The register has not been updated since. The non-citizens of India were declared as illegal immigrants and treated under The Foreigners Act, 1946. After various amendments, currently, the Citizenship (Amendment) Act, 2019 governs citizenship in India[3] that led to huge protests across the country due to the introduction of a provision to the extant section 2(1)(b).

CAA’s avowed objective is to enable the conferment of Indian citizenship upon members of minority communities who hail from  Afghanistan, Bangladesh, and Pakistan. Do we really need proof that minorities are persecuted in these Islamic republics? How can Parliament be faulted for coming to the conclusion that such minorities in the three named neighbours need to be protected?

Classification on the basis of religion is not per se unconstitutional – it is worth reminding ourselves that our Constitution confers special rights upon members of minority religious communities in India. If the law was broader and allowed members of all religious communities from Pakistan, Bangladesh, and Afghanistan to migrate into India, we could as well do away with our borders.

An even more tenuous argument is finding discrimination as the law does not extend to every citizen of every country (or some countries) who have suffered religious persecution. The boldest lawyers have not gathered the courage to advance any such argument – their disadvantage of course was that they were not TV anchors or enlightened members of civil society protesting on the streets.

The loudest criticism relates to the supposed intention of the government to throw all Muslims out of India. There is no law, rule or notification published – or even a draft circulated – that would suggest that the government has any such intent.  The Prime Minister has denied it.  If any procedure put in place requires Muslims alone all over India to prove their citizenship in a manner more onerous than that applicable to any other community, such a procedure would be unconstitutional.

Taking special measures to address demographic distortions caused by the Bangladesh conflict in defined geographic areas would be a class apart and to suggest that these measures could be made the template for the rest of India shows ignorance of the basics of the rule of law.

Polarisation between castes and religions is as old at least as the notion of modern India. I also find a growing polarisation between those who have enjoyed the perquisites of power over decades and between those who have replaced them. Add to this mix the fact that certain ideologies which are but dust on the bookshelves of political history in the countries of their origin continue to be romanced by intellectuals, some of whom dominate civil society and civil discourse. All this creates a fertile ground for protests and aggressive debates – and when it comes to romanticising such movements, perhaps the feeling is why let the truth spoil a good story!

[1] Ashna Ashesh & Arun Thiruvengadam, Report on Citizenship Law: India, RSCAS/GLOBALCIT-CR 2017, 12 July, 2017, 1, at 5-8. [2] Refer Census of India, 1951 in Census Digital Library, Ministry of Home Affairs, Government of India, http://censusindia.gov.in/DigitalLibrary/browseyearwise.aspx [3] The Citizenship (Amendment) Act, 2019, No.47 of 2019, http://egazette.nic.in/WriteReadData/2019/214646.pdf.

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