Does Citizenship Amendment Act affect the legal status of Muslims in India? A lawyer argues that it does

Saahil Kaul

The amendment made to the Citizenship Act, 1955 by the Government of India is being hotly debated across all fora. The proponents of the Citizenship (Amendment) Act, 2019 (CAA) have vehemently argued in favour of its constitutionality as well as necessity while dismissing all apprehensions and criticism related to its potential adverse impact on the country and its citizens. Then there is also the intrinsically linked National Register of Citizens (NRC), which the government very zealously plans to implement across the country in due course. But how many of us know the CAA and its implications well enough? How is it unconstitutional? Does it really affect the Muslims living in the country? What are the possible financial implications of the larger strategy of the Government in enacting the CAA? Is NRC really linked to CAA? The advocates of CAA have already brushed aside these questions as premature, ludicrous and unimportant. But is the CAA really as benevolent to everyone alike as it is held out to be? Let's find out the answers one by one.

What was the law prior to CAA?

Under the Citizenship Act, 1955, a person can be granted citizenship in four ways, namely (i) by birth; (ii) by descent; (iii) by registration; and (iv) by naturalisation. The CAA has modified the provisions and procedure related to grant of citizenship by naturalisation. Prior to the enactment of the CAA, any legal migrant (i.e. a person who entered India with a valid passport and visa) who was residing in India for an aggregate period of at least 12 years from the date of application became eligible to be considered for grant of Indian citizenship. Pertinently, this eligibility was in no manner linked to the religion of the migrant seeking Indian citizenship. Moreover, the Citizenship Act did not provide for grant of citizenship to illegal migrants in any circumstances, irrespective of their religion and the time spent in India.

What has CAA changed?

The CAA aims to provide fast track Indian citizenship to illegal migrants belonging to Hindu, Buddhist, Christian, Jain, Sikh and Parsi religion who came to India from Afghanistan, Pakistan and Bangladesh before 31 December 2014. Notably, the CAA specifically excludes Muslims from the ambit of the Act. Since the CAA requires these non-Muslim illegal migrants to have been residing in India for a period of at least 5 years from the date of application, they will become eligible to be considered for citizenship on and after 31 December 2019.

The intent of the law presumably is to provide refuge to the above class of non-Muslim illegal migrants who suffer religious persecution in Afghanistan, Pakistan and Bangladesh on account of their minority status. Notably, the CAA does not include Ahmadiyas and Shias of Pakistan or Rohingya Muslims of Myanmar who also suffer religious persecution in their respective countries.

So, why is the CAA unconstitutional?

There is plenty wrong with the CAA, starting with some of its contentious provisions being blatantly violative of Article 14 of our Constitution, which applies to all persons within the territory of India, including illegal migrants. Let me elucidate each point in detail.

Article 14 of the Constitution prohibits the State from framing laws which are arbitrary and suffer from a patent non-application of mind. Therefore, any law that is framed needs to have a rational nexus or connection with the purported objective that the law seeks to achieve. While the objective is not clearly discernible from the text of the CAA, the government has argued that it seeks to provide refuge to religiously persecuted minorities from three neighbouring states where Islam is the State religion. It is puzzling to note that if the intention of the CAA was to provide refuge to religiously persecuted migrants, then all such migrants which have crossed over before December 2014 ought to have been treated equally and considered as one class, irrespective of their religion. However, cherry picking of certain specific countries to give undue preference to one religious community to the detriment of the other is capricious and against the principles enshrined in Article 14.

The natural questions which then arise are, what is wrong with such cherry picking? Can the state as a matter of policy not choose who to grant citizenship to? What is so unconstitutional in that?

The answer to that lies in the preamble of our Constitution. The preamble describes India inter alia as a secular State, which means the State as a matter of policy cannot feel a higher obligation to favour one religion over another. Therefore, a law which seeks to fast track granting of citizenship to non-Muslim illegal migrants on account of their religious persecution while turning a blind eye to the religious persecution of Muslims in neighbouring countries is against the constitutional ethos of secularism enshrined in our Constitution. Let us not forget that this is the same government which ended the Haj Subsidy for Muslims in 2018 stating that such subsidy amounted to appeasement of one religious community alone. Agreed, a secular State ought not to permit such subsidies. But then it is quite ironical for the same "secular" Government to try and favour certain other religious communities through the CAA.

Next, the CAA provides no rationale or basis to explain why only religious persecution has been considered as the basis to grant citizenship when such illegal migrants often flee their own country due to several other forms of persecution such as on account of their race, nationality, political opinion or ideologies, membership in a particular social group and the list goes on. Did Tasleema Nasrin not have to flee her own Muslim majority country on account of a perceived threat of persecution despite being a Muslim herself? Precisely, the law fails to explain the rationale behind the above dichotomy where a non-Muslim who is religiously persecuted in Bangladesh, for instance, will be granted Indian Citizenship while a Muslim who is persecuted in Bangladesh for expressing a certain ideology will be ignored. This distinction is palpably arbitrary and suffers from a patent non-application of mind and is therefore violative of Article 14 of the Constitution.

Moreover, even under International Refugee Law, illegal migrants of the nature described above are granted "refugee status" in their country of Asylum. There is no obligation on States to grant citizenship to such illegal migrants. The CAA fails to provide any rationale as to why such illegal migrants are directly being offered citizenship as opposed to probably a refugee status, as is the norm internationally. The same assumes even more significance in the context of a country like India where the Government is struggling to provide basic amenities to even its existing citizens. Offering a direct citizenship to such illegal migrants as opposed to a refugee status will result in a higher obligation on the Government to provide all amenities and social security benefits to such migrants which it seeks to provide its existing citizens. The question that we need to ask ourselves is whether we as a country can afford this benevolence?

Those advocating in favour of the CAA have quite vehemently been asking how the CAA affects the Muslims living in the country. Well it does indeed affect them both legally as well as psychologically. Read on to find out how.

Legally speaking, after the enactment of the CAA, a legal Muslim migrant who came to India on a valid passport and visa (and has been residing in India for at least a period of 5 years) but now wishes to obtain Indian Citizenship as he fears persecution in his home country or even otherwise, will have to wait for at least 7 more years before being considered for citizenship. On the other hand, a Hindu illegal migrant without any visa or passport will be considered for a fast track citizenship if he has been residing in India for merely 5 years. Does that not seem unfair and discriminatory?

The psychological aspect of this ought to be evident already. The Muslims of the country are made to believe that India feels a higher obligation to protect Hindus and other minorities who are persecuted elsewhere while India is okay with ignoring the plight of Muslims in neighbouring countries. It effectively reduces the status of Indian Muslims as second grade citizens as the CAA demonstrates that Hindus and other minorities who migrate into India even illegally, have a preferential right to be considered for citizenship of India while legal Muslim migrants will need to wait longer.

But the CAA has got nothing to do with the NRC, right?

To say that the CAA and NRC are entirely separate or that CAA will have no direct or indirect bearing on the NRC process to be undertaken by the Government subsequently is akin to living in a fool's paradise. It would be naïve to argue that the CAA has to be considered in isolation and its draconian nature becomes increasingly evident when viewed holistically, specifically in the larger perspective of the known ideology of the Government that has passed it and the long standing agenda of the incumbent Government, which is nothing but a gradual and systematic ethnic cleansing of the country. The agenda becomes clearer when you try and connect the NRC exercise conducted in Assam and its consequences with the recent Tweet from BJP's official Twitter handle, which went viral and was subsequently deleted following protests across the country.

The NRC isn't going to cost much, is it?

As per official data, the NRC exercise which was carried out by the Government in Assam cost the exchequer around Rs. 1200 crores. If the NRC exercise in a small State like Assam could cost that much, you can only imagine the burden on the exchequer if the exercise is carried out across the country. Having said that, let us also not forget whose money is ultimately used to fill that exchequer.

The author is a Delhi-based lawyer and an alumnus of National Law University, Jodhpur

Also See: Anti-CAA protests: 46 students detained outside Uttar Pradesh Bhawan in Delhi for protesting against police action

DMK takes out anti-CAA rally in Chennai, warns of more protests till Centre withdraws 'draconian' citizenship law

US ivy league students write open letter over CAA, NRC to 'condemn Hindutva ideology, Modi govt's fascist treatment of Indian Muslims'

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