UPSC LAW OPTIONAL CA 2020/2021 : CONSTITUTIONALITY OF CITIZENSHIP AMENDMENT ACT 2019.




INTRODUCTION : CITIZENSHIP AMENDMENT ACT (CAA)


REASON FOR THIS LAW? Illegal migrants from Pakistan, Bangladesh and Afghanistan can get citizenship of India if they satisfy procedural requirements.


IS IT NOT A GOOD LAW? WHY SO MUCH OF CRITICISM AND OPPOSITION?

PROBLEM 1 : The fact that act that it does not include Muslims from these countries, to get citizenship is problematic. Only Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians facing religious persecution in the three nations, to can get Indian citizenship. This kind of exclusion of muslims is against the nature of Constitution of India.


PROBLEM 2 : North eastern states are agitated. Northeast States oppose the CAA saying that granting citizenship to foreign refugees might create demographic or ethnic changes there.


Assam is concerned with the operation of Assam Accord 1985. Assam accord is agreement to protect the culture of Assam by stopping ‘foreigners’ from Bangladesh. If CAA is implemented, it would allow illegal migrants to become citizens of India. For the same reason, Tripura did not want allow the illegal migrants in their state. It is said to violate Instrument of Accession,1947. Manipur would be worst affected as it does not have even ILP regime.

CONSTITUTIONAL LAW : Part II (concerning citizenship) provided citizenship based on domicile in the territory of India. In fact, under Article 6 of the Constitution, migrants from Pakistani territory to Indian territory were also given citizenship rights.The Constitution also recognises the power of Parliament to make provisions with respect to “acquisition and termination of citizenship”. Pursuant to this, Parliament had enacted the Citizenship Act, 1955; again, religion is not a relevant criterion under the 1955 Act.


VIOLATION OF ARTICLE 14 :

Article 14 of the Constitution of India, prevents the State from denying any “person” (as opposed to citizen) “equality before the law” or “equal protection of the laws” within the territory of India. On the following grounds, Article 14 is said to be violated by unreasonable classification.


UNREASONABLE CLASSIFICATION :

a) OF COUNTRIES : The basis of clubbing Afghanistan, Pakistan and Bangladesh together and thereby excluding other (neighbouring) countries is unclear. The countries such as Nepal, Bhutan and Myanmar, which share a land border with India, been excluded without any reason.

One of the reasons stated that in the bill that these 3 states have their ‘state religion’. However, Bhutan too have their ‘state religion’. If the law is enacted to protect the “religious minorities”, then why does not it include Tamil Hindus from Sri Lanka.


b) ON WHOM BENEFIT FALLS : CAA gives benefit of citizenship only to migrants of one kind – “Religious persecution”, thereby excluding “Political persecution”.


c) OF RELIGION: Restricting the benefits of “religious minority” to six religious groups (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) is equally questionable.


A Rohingya (of Muslim religion), of Myanmar facing ‘religious persecution’ cannot seek for citizenship of India, but however, A Hindu from Bangladesh may get the citizenship.

Further, it fails to allow Shia and Ahmadiyya Muslims, who also face persecution, to apply for citizenship.


IN THE UNITED STATES : This law might remind the Donald Trump’s multiple executive Orders, which sought to exclude the Muslims refugee to enter into U.S. Soil. In a 5-4 ruling, the Supreme Court upheld the Trump administration’s third Muslim ban. Opinion of Human rights group was that “this ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action."


CONCLUSION :

  • The central feature of the equal protection of the law envisaged in Article 14 is that the basis for classifying a group for a particular kind of treatment should bear a rational nexus with the overall objective.

  • If protecting persecuted neighbourhood minorities is the objective, the classification may fail the test of constitutionality because of the exclusion of some countries and communities using religion.

  • It is also essential to underscore that in no civilised country can religion be the basis of citizenship, specifically if the founding principles of such nation states championed secular ideals and equality before the law.



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