The story so far: Four years after the Parliament passed the Citizenship Amendment Act (CAA), 2019, the Ministry of Home Affairs (MHA) notified the rules to implement the law on March 11.
The contentious law fast-tracks citizenship to undocumented immigrants from six non-Muslim communities — Hindu, Sikh, Buddhist, Parsi, Christian and Jain — from the neighbouring countries of Pakistan, Afghanistan and Bangladesh. The rules state that the applicants must provide six types of documents and specify “date of entry” in India to be eligible for citizenship.
Although the Act was passed on December 11, 2019, and received assent from the President on December 12 of the same year, it could not be implemented since the rules were not framed. The MHA had earlier notified that the Act would come into force from January 10, 2020, but later sought at least 10 extensions from the Parliamentary Committee on Subordinate Legislation to frame the rules.
The CAA is also under challenge before the Supreme Court, with several petitioners moving fresh pleas seeking a stay on the implementation of the rules.
The citizenship law
In December 2019, the Parliament passed an amendment to The Citizenship Act, 1955 (1955 Act) introducing a new proviso to Section 2(1)(b) which defines “illegal migrants.” Accordingly, persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Bangladesh, Pakistan, and Afghanistan who entered India on or before December 31, 2014, and whom the Central government has exempted under the Passport (Entry into India) Act, 1920, or the Foreigners Act, 1946, were not to be treated as “illegal migrants” and would instead be eligible for citizenship under the 1955 Act. In essence, the amendment relaxed the eligibility criteria for certain classes of migrants from three neighbouring Muslim-majority countries on religious lines.
However, certain tribal areas in Assam, Meghalaya, Mizoram, and Tripura as included in the Sixth Schedule of the Constitution and areas covered under “the Inner Line” notified under the Bengal Eastern Frontier Regulations of 1873 were exempted from the legislation’s ambit. To access these protected areas, an Inner Line Permit (ILP) is needed from the concerned State governments.
Viewed in combination with the proposed all-India National Register of Indian Citizens (NRIC), the CAA has the potential to disproportionately impact Muslims residing in India by depriving them of citizenship. While non-Muslims excluded from the NCR will have the opportunity to regain citizenship via the CAA, such an opportunity will not be available to Muslims. A Supreme Court-monitored National Register of Citizens that took place in Assam in 2021 left out over 19 lakh people from the citizenship register.
On May 28, 2021, the Union government issued an order under Section 16 of the 1955 Act, granting District Collectors in five States with high migrant populations the power to grant citizenship to groups identified in the 2019 amendment. In its 2021-22 Annual Report, the MHA stated that in 2021, 1,414 citizenship certificates were granted under CAA provisions. However, after petitions were filed alleging that this order was a “ruse” to implement CAA by circumventing judicial scrutiny, the MHA contended before the Supreme Court that its order has “no relation whatsoever” with the CAA and that it merely delegated “the power of (granting citizenship by registration and naturalisation) to the local authorities in particular cases.”
With the newly notified rules, the Centre has eased the process of granting Indian citizenship to members of the specified communities by excluding the requirement of a “valid passport” of their origin countries or a valid visa from India. Instead, “any document” that shows one of the parents, grandparents or even great-grandparents of the applicant was from one of these countries is sufficient to prove their nationality. Additionally, a certificate issued by an elected member of a local body can be a replacement for a visa.
‘Violation of Article 14’
Immediately after the passage of the Citizenship (Amendment) Bill, 2019, the Indian Union Muslim League (IUML) filed a petition in the Supreme Court challenging its constitutionality. Soon after, close to 200 petitions were tagged to the IUML plea.
These petitions primarily challenge the law for violating Article 14 of the Constitution which guarantees all ‘persons’ (not only citizens) equality before the law and equal protection of law. They also argue that making religion a qualifier for citizenship violates secularism, which is a basic feature of the Constitution.
To pass constitutional muster, any differentiation between groups of persons must be founded on an “intelligible differentia” ( a clear criterion) and this differentiation must have a “reasonable nexus” (connection) with the objective sought to be achieved by the legislation. Referring to this, the petitioners have contended that the special treatment given to the specific “persecuted religious minorities” from the three Muslim-majority neighbouring countries does not constitute a “reasonable classification” under Article 14. More so because groups like the Tamil Hindus in Sri Lanka, the Rohingyas in Myanmar and minority Muslim sects like the Hazaras in Afghanistan also face persecution but have been denied similar protection under this law.
Such an argument is not without precedent. The Supreme Court recently struck down the electoral bonds scheme for being “manifestly arbitrary,” especially in treating political contributions by individuals at par with those made by companies, as the latter is often made with the intent of securing benefits in return.
The CAA has also been dubbed as a move to subvert the Assam Accord of 1985 that deems any person who cannot prove his ancestry beyond March 24, 1971, an alien and does not differentiate on grounds of religion. The petitions, especially one by the All Assam Students’ Union, contend that the law will further multiply the “uncontrolled influx of illegal migrants from Bangladesh to Assam.”
Centre’s response
Calling the CAA a “benign piece of legislation,” the Centre in its affidavit before the Supreme Court said that it seeks to provide amnesty to specific communities from specified countries with a clear cut-off date. It highlighted that the law does not in any manner affect the legal, democratic or secular rights of any Indian citizen.
“The CAA does not seek to recognise or seek to provide answers to all or any kind of purported persecution that may be taking place across the world or that may have taken place previously anywhere in the world,” the government reasoned.
The affidavit further stated that the “narrowly tailored legislation” was passed to “tackle a specific problem, i.e., the persecution on the ground of religion in the light of the undisputable theocratic constitutional position in these specified countries, the systematic functioning of these States and the perception of fear that may be prevalent amongst minorities as per the de facto situation in these countries.” It added that in matters of foreign policy, citizenship, and economic policy among others, a wide latitude is available to the Parliament.
Status before the Supreme Court
On December 18, 2019, a Bench comprising former Chief Justice of India (CJI) S.A. Bobde, Justices B.R. Gavai and Surya Kant refused to stay the operation of the law and instead suggested that the government publicise the actual intent of the Act so that there was no confusion among the public about its objectives and aims.
The Court rejected a similar plea for stay on January 22, 2020, by underscoring that it needs to hear the government first. Accordingly, the Centre was given 4 weeks to file its response to the petitions.
On October 6, 2022, a Bench comprising former CJI U.U. Lalit and Justices Ravindra Bhat and Hima Kohli passed an order stating that final hearings in the case would begin on December 6, 2022. However, the case has not been listed since then. As per the Supreme Court’s website, the petitions are currently listed before a Bench headed by Justice Pankaj Mithal.
Stay on CAA rules
The IUML, the lead petitioner in the case, and others such as the Democratic Youth Federation of India (DYFI), the All Assam Students Union (AASU), and Opposition leaders like Mr Debabrata Saika and Mr Abdul Khaleque have moved the top court seeking a stay on the rules notified on March 11.
They have pointed out how the Centre had earlier averted a push for a stay of the CAA in the Supreme Court nearly five years ago by arguing that the rules had not been framed. It has also been highlighted that the rules have done away with the independent and tiered scrutiny of applications for citizenship by District Collectors on the ground, and recommendations of State governments as to the wisdom of granting citizenship to the applicants.
“There is no scope for the State government to give recommendations or for the Central government to conduct an inquiry about the suitability of the applicant,” the petitioners noted. Asserting that there is “no urgency,” they said that the government ought to have waited for a final decision from the Supreme Court before implementing the rules.
Fate of the challenge to Section 6A of the Citizenship Act
The proceedings against the CAA are also dependent on the outcome of the challenge to Section 6A of the 1955 Act which was introduced in furtherance of a Memorandum of Settlement called the “Assam Accord” signed on August 15, 1985, between the Centre and the leaders of the Assam movement.
In December last year, a five-judge Constitution Bench led by CJI D Y Chandrachud reserved its verdict on the validity of Section 6A after orally observing that the provision was enacted as a humanitarian measure in the wake of the 1971 Bangladesh Liberation War and was deeply interwoven in the country’s history.
Section 6A determines who is a foreigner in Assam by establishing March 24, 1971, as the cut-off date for entry — those who came to the State on or after January 1, 1966, but before March 25, 1971, were to be declared as “foreigners” and would have all the rights and obligations of Indian citizens except that they would not be able to vote for 10 years.
If March 24, 1971, is upheld as a valid cut-off date for entry into the State, then CAA can be held to be violative of the Assam Accord since it establishes a different timeline.
