As parts of the country burn due to protests, rioting and arson over the misconception that the Citizenship Amendment Act will divide India across religious lines, it is important to lay down the facts of this Act and what it entails for Indian citizens.
For one, it has got nothing to do with Indian citizens. This is an Act that will confer citizenship upon Hindus, Buddhists, Jains, Christians, Sikhs and Parsis, who are a minority community and have been persecuted along religious lines in neighbouring Pakistan, Bangladesh and Afghanistan.
By no means does any word in the Act deprive any Indian the right to citizenship, least of all Muslims.
Thus, the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 that regulates entry to India will not be applicable to illegal immigrants from the aforementioned communities. After the Citizenship Amendment Bill was passed in Parliament, many legal heavyweights from the Opposition political parties have said that this amended Act is unconstitutional, unsecular and the Supreme Court will strike it down as it flouts fundamental right to equality (Article 14) and discriminates along religious lines (Article 15) of the Constitution.
Many have also questioned the exclusion of Sri Lankan Tamils, Pakistani Ahmadiyyas, Afghani Hazaras and Myanmarese Rohingyas.
Let us analyse all these points.
The first question that arises is whether Parliament can pass an amendment to an Act which deals with citizenship. The answer lies in Article 11 of the Constitution which clearly states that Parliament is empowered ‘to regulate the right of citizenship by law’. This can also extend to the ‘acquisition and termination of citizenship’.
In one of the Constituent Assembly debates, the chairman of the drafting committee Dr BR Ambedkar had said, “The business of laying down a permanent law of citizenship has been left to Parliament.”
The second point the Opposition raises is that the CAA violates Article 14 of the Constitution. If we were to look at Article 14, it has two important objectives: equality before law and equal protection of law. Equality before law means that no person, irrespective of his social standing, is above the rule of law. And equal protection means that likes are to be treated alike as unequal people cannot be treated equally. It is because of this we have reservation for SC/STs and OBCs.
While Article 14 does not allow arbitrary and artificial class legislation, it allows for reasonable classification based on intelligible differentia.
As this amended Act has gone to the Supreme Court for scrutiny, the Bench will look at it from three aspects: 1. What are the ‘statement of objects and reasons’ of the Act?, 2. Is there an intelligible differential between those who are included and excluded from the Act?, and 3. Is there a rational nexus with the ‘statement of objects and reasons’ of the Act?
Looking at points (1) and (2), the Act makes a clear distinction between the ones who are included and excluded from the amendment. The Act looks at India’s neighbouring countries, which have a Muslim majority, and provides relief for illegal immigrants from religiously persecuted minorities, who entered India on or before December 31, 2014, to avail themselves of Indian citizenship by the process of registration or naturalisation.
Thus, it reasonably differentiates between the majority, i.e. Muslims and the aforementioned minorities where Islam is the state religion.
When it comes to reasonable nexus, the Act clearly mentions the day-to-day persecution being faced by the said minorities. The Act eases the process of acquiring Indian citizenship through naturalisation for these class of people by bringing down the period of residence from 11 years to 5 years before applying for Indian citizenship.
Nowhere in the Act is it mentioned that the state prohibits foreign Muslims from applying for Indian citizenship through the process of naturalisation. However, the law remains the same as it was before. Out of a cumulative of 14 years preceding the date of application, the applicant needs to stay for a minimum period of 11 years in this case.
If the government had opened the gates only for Hindus from these neighbouring countries, then it wouldn’t stand the Supreme Court’s legal test.
Also, including Tamil Hindus, Ahmadiyyas, Hazaras and so on would have amounted to unreasonable classification as they have been persecuted along ethnic, political, linguistic and ideological lines.
Furthermore, there is no question of the Act violating Article 15 of the Constitution. Unlike Article 14, this fundamental right is not meant for foreigners.
As to protecting the cultural integrity of North-East India, the areas under the Inner Line Permit (ILP) and the Sixth Schedule of the Constitution that covers almost the whole region, particularly Assam, are exempt under this Act.
If this amended Act has opened the doors to many immigrants across different faiths who face religious persecution in these Muslim-dominated neighbouring countries, CAA is certainly extremely secular, inclusive and tolerant in nature.