The Citizenship Amendment Act 2019: Unconstitutional and Divisive

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By Dr. Iqbal Siddiqui

NEW DELHI—The Indian government on Monday announced the implementation of the Citizenship Amendment Act (CAA) of 2019, a law that was passed by parliament in 2019 but was not enforced until now. This has sparked heated discussions across the country. Let’s delve into why the CAA is both unconstitutional and divisive.

Overview of the Citizenship Amendment Act (CAA):

The CAA seeks to facilitate Indian citizenship for specific religious minorities who have faced persecution in neighbouring countries. It allows illegal migrants or those overstaying their visas, belonging to Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities from Afghanistan, Bangladesh, and Pakistan, to apply for Indian citizenship. However, certain areas in the North-East, like the tribal regions of Assam, Meghalaya, Mizoram, and Tripura, are excluded from this provision.

The CAA brought amendments to Sections 2, 3, and 6 of the Citizenship Act 1955. Section 2 relaxes the eligibility criteria for citizenship by naturalization for immigrants of the mentioned religions from Afghanistan, Bangladesh, and Pakistan who entered India on or before December 31, 2014. For these communities, the required residency period in India has been reduced from 11 years to 5 years, with no need for registration or naturalization certificates. They are also exempted from provisions of the Passport (Entry into India) Act of 1920 and the Foreigners Act of 1946.

Section 3 states that these beneficiaries will not be considered illegal migrants under any proceedings governed by the Citizenship Act. Section 6 eases the eligibility criteria for citizenship by birth for these communities. Individuals from these communities will not face deportation or imprisonment for being illegal migrants.

The Constitutional Concerns

  1. Violation of Article 14: The heart of the controversy lies in the CAA’s discriminatory approach by introducing religion as a criterion for eligibility, it violates Article 14 of the Indian Constitution, which guarantees equality to every person and prohibits discrimination based on religion, race, caste, sex, or place of birth. This principle applies even to non-citizens residing in India.
  2. Secular Identity Undermined: The CAA undermines India’s secular identity. By granting citizenship based on religion, it perpetuates the idea of alienation of Muslims, potentially affecting the well-being of Muslims living in India. The legislation discriminately favours specific religious communities, which contradicts the secular fabric of our country.
  3. Selective Inclusion: The CAA aims to protect minorities facing religious persecution in their respective countries and excludes Muslims. By using religion as a criterion, CAA makes illegal classifications between citizens based on their faith.
  4. Undermining of Secularism: The Citizenship Amendment Act (CAA) undermines the fundamental structure of the Constitution by eroding its secular essence. The Preamble explicitly defines India as a secular republic, a principle affirmed as integral to the basic structure of the Constitution in the landmark S.R. Bommai v. Union of India case.

Employing religion as a determinant of Indian citizenship contradicts the tenets of constitutional secularism. Even the government’s reference to the Nehru-Liaquat Pact acknowledges a secular approach, safeguarding minority rights in both nations irrespective of religious affiliation.

The conceptualization of India as a sanctuary for Indic religions such as Hinduism, Buddhism, Jainism, and Sikhism, as emphasized in the CAA, directly conflicts with the constitutional concept of citizenship. In this constitutional vision, the protection of rights for religious minorities is not an act of generosity but a constitutional obligation rooted in secularism.

Legal Challenges and Public Outcry

  1. Supreme Court Challenge: The CAA was legally challenged before the Supreme Court under Article 32 of the Constitution. The primary argument is that the law violates Article 14, the right to life under Article 21 and constitutional morality inherent in the basic structure, denying equal protection of the law to all individuals within India’s territory.
  2. Opposition’s Stand: Opposition MPs have vowed to challenge the CAA legally, emphasising its divisive nature. The Congress said that the decision to notify the rules for the CAA was “designated to polarise the elections”.  Congress MP Kapil Sibal expressed concern that it would destabilise India’s polity and erode trust. Senior Congress leader Jairam Ramesh said that the decision of the Centre to notify the rules for the Citizenship Amendment Act just before the elections is “designed to polarise the elections”. Bengal Chief Minister Mamata Banerjee called it a “show-off before the elections”. Kerala Chief Minister Pinarayi Vijayan said that the CPM government won’t implement the CAA in the state.
  3. The Muslim Leadership: In a joint statement, released on Tuesday, the Muslim leaders have vehemently condemned the move and demanded immediate repealing of the act. They believed that citizenship should be granted based on principles of equality, irrespective of religion, caste, or creed. According to them the Act’s provisions directly contradict the principles of equality and threaten the secular fabric of our nation. The leaders included Maulana Mahmood Asad Madani: President, Jamitul Ulema Hind(Mahmood faction), Syed Sadatullah Husaini: President, Jamaat-e-Islami Hind, Maulana Asghar Imam Mehdi Salafi: President, Jamiat Ahle Hadith Hind, Maulana Faisal Wali Rahmani: Ameer, Imarat-e-Sharia, Maulana Aneesur Rahman Qasmi: Vice President All India Milli Council, Maulana Yaseen Usmani Badayuni: Vice President All India Milli Council, Malik Moatasim Khan: Vice President Jamaat-e-Islami Hind, Mohammad Saleem Engineer: Vice President Jamaat-e-Islami Hind, Maulana Hakeemuddin Qasmi: General Secretary Jamiatul Ulema Hind(Mahmood group), Welfare Party of India president Dr. Syed Qasim Rasool Ilyas, Maulana Niyaz Farooqui, Shaikh Mujtaba Farooque, Dr Zafarul-Islam Khan, Ex-Chairman, Delhi Minorities Commission.
  4. Implications for Muslims: The potential implementation of a nationwide National Register of Citizens (NRC) alongside the Citizenship Amendment Act (CAA) has sparked apprehensions of widespread disenfranchisement. The recent NRC rollout in Assam saw approximately 20 lakh individuals, predominantly Muslims and long-time residents, excluded. The introduction of a nationwide NRC coupled with CAA is poised to disproportionately impact Muslims who may struggle to furnish the necessary documentary evidence of citizenship. While non-Muslims may benefit from the safeguards offered by CAA, Muslims face the grim prospect of statelessness.

Despite government assurances that the NRC won’t target any specific community, concerns persist regarding its potential discriminatory application alongside CAA. Any citizenship documentation initiative should adhere to secular constitutional principles rather than religious criteria. Additionally, the human toll of stripping genuine citizens of their rights must be duly acknowledged and considered.

Conclusion

The Citizenship Amendment Act (CAA) has spotlighted the intricate interplay between citizenship, secularism, and democracy. Although the central government contends that the Act seeks to fast-track citizenship for minorities from specific nations, its reliance on religion as a determinant raises constitutional concerns. As conscientious citizens, it is incumbent upon us to foster informed dialogues, uphold constitutional principles, and advocate for solutions that foster harmony over discord. It is through constitutional avenues, constructive dialogue, and robust discourse that we can effectively navigate this multifaceted landscape and preserve the integrity of our democratic principles.

(The author is national assistant secretary, Jamaat-e-Islami Hind.)

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