UNDERSTANDING THE CITIZENSHIP AMENDMENT ACT, 2019 (CAA)

INTRODUCTION

As per Section 2(b) of the Citizenship Act of 1955[1], an ‘illegal migrant’ refers to a foreigner who has entered into India without a valid passport or other travel documents as prescribed under law and (or) with such valid documentation but exceeds the permitted period of time of stay in India. Up until 2019, 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 without such valid documentation were considered to be illegal migrants and would have been imprisoned or deported under the Foreigners Act, 1946[2] and the Passport (Entry into India) Act, 1920[3].

Needless to mention, a substantial amount of such persons would have been the fleeing victims of religious persecution and poor living conditions only to have entered India hoping for refuge and having had to face further complications due to the lack of proper paperwork which may have resulted from the lack of adequate resources.

Citizenship (Amendment) Act, 2019[4] (CAA) has thus been an endeavour at assuaging the problems of such persons and to further provide them with the same rights and reliefs provided to any other Indian citizen.

However, this initiative has faced some backlash in different parts of the country as well as from different sects of the society. This article shall thus be an attempt at laying out the changes made and clearing out the numerous myths surrounding this piece of legislation.

HISTORICAL CONTEXT

Citizenship (Amendment) Bill, 2019 was introduced in 2016 in the Lok Sabha seeking to amend the Citizenship Act of 1955 and to provide citizenship to the illegal migrants belonging to the six minorities herein dealt with having migrated from Pakistan, Afghanistan and Bangladesh and to further make certain changes in the Overseas Citizens of India (OCI) cardholders’ registration provisions. However, the same was referred to a Joint Parliamentary Committee.
In 2019, the bill was again tabled in the Lok Sabha after having taken into consideration the amendments suggested by the Joint Parliamentary Committee Report[5] only to have lapsed due to the dissolution of the 16^th Lok Sabha. The bill was finally passed in both the houses in December 2019 and then assented to by the Hon’ble President on 12^thDecember, 2019. The Act was at last enforced in absolute on 11^th March 2024 by way of notification in the Official Gazette regarding the amendments made in the Citizenship Rules, 2009.

KEY PROVISIONS OF THE CAA

1. Grant of Citizenship to Specific Communities: The major amendment that has been made in the Citizenship Act, 1955 by way of CAA, 2019 is the insertion of provisions granting citizenship to the illegal migrants 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 by way of proviso in Section 2(1)(b) in the Citizenship Act, 1955.

After the grant of citizenship, such persons would be deemed to have been granted citizenship from the date of their entry into India and would be entitled to enjoy all such rights as the citizens of India enjoy. Further all legal proceedings on-going against them entailing the subject matter of illegal migration/ citizenship would further be declared as closed.

2. Exemptions for Tribal Areas and Inner Line Permit Areas: However, by way of insertion of Section 6B(4), the insertion made in Section 2(1)(b) does not apply to the tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.

This exemption has been made to protect the indigenous tribal communities and the areas which they inhabit.

3. Reduction of Naturalization Period: Third major amendment in this Act has been the reduction of period of naturalisation for the abovementioned minorities from 11 years to 6 years, as inserted in the clause (g) of the Third Schedule of the Act.

The same has been provided to facilitate the grant of Citizenship by way of naturalisation to the specified persons unable to provide documentary evidence in support of their origin claims.

4. OCI Scheme Amendments: Overseas Citizenship of India is a scheme initiated by the Government of India in 2005, which aims at providing an overseas citizenship to Persons of Indian Origin (PIOs) who were citizens of India on 26^th January, 1950 or thereafter or had met the eligibility criteria for grant of Indian citizenship on 26^thJanuary, 1950 (save a few exemptions specified by the Government). This scheme essentially enables the grant of life-long visas as well as for multiple visits and multiple purposes amongst other benefits.

The sub-clause (da) of Section 7-D of the Act has been inserted to provide violation of the provisions of the Citizenship Act, 1955 or other provisions of other laws in force specified by the Government as a fair ground for termination of the Overseas Citizenship on India of any OCI Cardholder.

This however has to be achieved keeping in mind the principles of natural justice as the proviso of the act substantiates.

5. Constitution of Committees for Citizenship Grant: Lastly, by the Order vide 11^th March, 2024[6] issued by the Ministry of Home Affairs, an Empowered Committee and several District Level Committees (DLC) have been constituted in the States and the Union Territories for the grant of citizenship by registration or naturalisation of the specified minorities under section 6B of the Citizenship Act, 1955 subject to other conditions as specified in the above order, the Citizenship Act as well as the Citizenship Rules, 2009. This means that the illegal migrants belonging to these 6 communities from the 3 nations can apply for citizenship in said DLCs and the last decision would lie with the Empowered Committee.

CLARIFICATION OF AMBIGUITIES SURROUNDING CAA

The Citizenship (Amendment) Act, 2019 has witnessed a varied array of reactions ranging from acceptance to concerns regarding its constitutional validity. It becomes necessary thus to discuss some of the more widespread misinformation and ambiguities revolving CAA.

1. No provision of the CAA aims at taking away the already granted citizenship of any Indian citizen, regardless of the religious denomination said citizen may belong to. Further, implementation of CAA does not take away from any religious community or any persons their right to apply for citizenship by way of the already existing framework provided in the Citizenship Act, 1955, including the Muslims from other countries.

CAA merely aims at providing citizenship to the illegal migrants belonging to the six minorities specified who have migrated from Bangladesh, Pakistan and Afghanistan, as the same would provide the shelter said immigrants may have sought in India from religious persecution. The reason given for the non-inclusion of the Muslim community by the legislators of this Act has been these states being Islamic states.

2. CAA does not provide for any legal framework for the deportation or imprisonment of illegal immigrantsirrespective of whether they do or do not belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan. The provisions for deportation and imprisonment of all illegal migrants have already been long in existance and governed by the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. Emphasising further its sole aim of providing citizenship to the above stated immigrants without affecting the rights of any citizen or changing the state of any other illegal immigrant not covered above.
3. The National Register of Citizens (NRC) as has been implemented in Assam, is an official database containing the demographic information about the citizens of India who are legally granted citizenship under the Citizenship Act, 1955. NRC has till date been a state specific practice limited to the territory of Assam and is not a religion based exercise.

Although a proposal of maintenance of a National Register of Indian Citizens and for that purpose establishment of a National Registration Authority under Section 14A of the Citizenship Act, 1955 has been provided, there exists no mention of NRC in the CAA or any legislation declaring the implementation of NRC on a nationwide scale. The government has also denied any claims about a linkage of CAA to NRC for the latter’s updating.

4. The National Population Register (NPR), which also comes up from time to time when talking about CAA, is a database which would cover all usual residents of India, i.e., persons (whether citizens or not) residing in India for at least 6 months and intending to stay for another 6 months or more. NPR is the first step towards the creation of the National Register of Indian Citizens (NRIC)[7] as the same would verify the citizenship status of the usual residents; however, the Government has denied any direct link between NPR and CAA.

CHALLENGES FACED BY CAA

1. Constitutional Challenges: The CAA has been speculated to be violating of Article 14 i.e., Equality before law and of Article 25, i.e., Freedom of conscience and free profession, practice and propagation of religion. However, justifications against the same have been vehemently provided by the Government of India. As for Article 14, the centre has referred to historical reasons of religious persecutions of non-Muslim minorities in the Islamic states to be used as the nexus for creating a reasonable classification and taking into account only the non-Muslim minorities belonging to Islamic states of Pakistan, Afghanistan and Bangladesh.

As for Article 25, CAA does not in any way affect the rights of any person residing in India with regards to the profession, practice and propagation of their religion. It is the enforcement however which would validate the above claims and establish the constitutional validity of the amendment.

2. Impact on Assam Accord: Secondly, the Assam Accord of 1985[8] was entered into by the state of Assam to grant citizenship to the foreigners who entered Assam before 1971 in accordance with the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964. It made clear its intentions to expel all foreigners who were to enter into Assam illegally after March 25, 1971 in order to safeguard the cultural, social, linguistic identity and heritage of the Assamese people. CAA however has shifted this date to the year 2014 while exempting certain tribal areas of Assam, leading to backlash from the Assamese communities who fear the dilution of their culture and heritage by way of entry of foreigners into their territories.
3. National Security Concerns: Given the large number of illegal migrants residing in the country belonging to the three countries specified, a threat perception to national security may persist on some level, as such migrants may easily obtain relevant documentation and indulge in prejudicial activities posing threat to national security and cause internal disturbance. However, what is important to note here is that CAA merely provides citizenship by naturalisation to selected persons who have resided in India on or before 31^st December, 2014. The security implications thus assuage to substantial degrees given their prolonged residence extending over a decade.
4. Global Responses: CAA has received diverse responses globally, with concerns raised, by the European Parliament and the United Nations over non-inclusion of Muslims and others from the three select countries, as well as Tamil refugees from Sri Lanka, Buddhist refugees from Tibet, Rohingya Muslims from Myanmar and further questions raised over religion being used as a criterion for citizenship despite India’s secular nature. On the other hand, several countries have maintained their stance of respecting India’s sovereignty and internal affairs.
5. Ambiguity in OCI Cancellation Criteria: The expanded ambit by way of CAA regarding the cancellation criteria for the OCI cardholders has further been emphasised as being ambiguous with regards to its phrasing ‘violation of Citizenship Act or any other law in force’ and requires further clarification.

CONCLUSION

Citizenship (Amendment) Act of 2019 has been enacted and enforced to provide shelter to the victims of religious persecutions who had fled their countries looking for a safe haven in India but were further refused assistance due to the lack of documentary support. According to the Intelligence Bureau, over 30,000 persons would be the immediate beneficiaries of this legislation.
The four major amendments introduced by way of this act are:-

1. Granting citizenship to the illegal migrants 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;
2. Exemption of tribal area of Assam, Meghalaya, Mizoram or Tripura and the area covered under “The Inner Line”;
3. Reduction of period of naturalisation for the six minorities from 11 years to 6 years;
4. Insertion of another ground for termination of the Overseas Citizenship on India of any OCI Cardholder.

This Act does by no means affect the citizenship rights of the already existing citizens, neither does it take away from any migrant the right to apply for citizenship in India. CAA has been an initiative by the Government towards providing asylum to the long-suffering residents of India who were minorities in their own countries and it is only hoped that other victims of persecution such as the Buddhist refugees from Tibet would be granted such benefits as provided to the six minorities through further amendments in the Citizenship Act. Like any other piece of legislation, CAA too will have to undergo scrutiny and challenges- the consequences of which would be judicial precedents and thus a more elaborated and established footing vis-à-vis the enforcement and the practical implications. Being said, given the previous dearth of refugee policies and legislation in India, for instance India not being a signatory to the United Nations 1951 Refugee Convention or the 1967 protocol, CAA in its conceptual sense is certainly a step in the right direction.

AUTHOR: Ms. Archi Jain, pursuing BBA LLB from Amity University Madhya Pradesh.

[1] a1955-57.pdf (indiacode.nic.in)

[2] A1946-31.pdf (indiacode.nic.in)

[3] AAA1920____34.pdf (indiacode.nic.in)

[4] a1955-57.pdf (indiacode.nic.in)

[5] 16_Joint_Committee_on_Bill_to_amend_the_Citizenship_Act_1955_1.pdf (eparlib.nic.in)

[6] ordersection6B_rule_11A.pdf (indiancitizenshiponline.nic.in)

[7] AnnualReport_18_19.pdf (mha.gov.in)

[8] The Assam Accord – English.pdf