An Introduction to Citizenship Amendment Act- Is it Constitutional?
Author: Charu Chadha, Law College Dehradun, Uttaranchal University, Dehradun
The Minister of Home Affairs introduced the Citizenship (Amendment), 2019 in Lok Sabha. The bill seeks to alter the Citizenship Act of 1955 in order to allow some religious communities from Afghanistan, Bangladesh, and Pakistan eligible for Indian citizenship. Muslims from eight nations, all of which are Muslim-majority countries, are not eligible under the statute. The act marked the first time in Indian law that religion was utilized as a factor for citizenship.
Citizenship law was passed in 1955 by the Indian government. After the Assam Accord was signed in 1985, the Citizenship Act was changed. The Citizenship Act of 1955 was revised in response to political developments in the 1980s. At the time of the constitution’s adoption, all residents of India were guaranteed citizenship. The Citizenship (Amendment) Act, which made significant changes to the Citizenship Act, was passed in December 2003. It amended the Act to include the concept of “illegal immigrants,” rendering them ineligible to petition for citizenship and defining their offspring to be illegal immigrants. The amendment was supported by the Hindu nationalist Bharatiya Janta Party (BJP).
3. In India, how does one become a citizen?
Citizenship is regulated by the Citizenship Act, 1955 in India. Citizen can acquire citizenship in five ways-
- By birth in India (Section 3)
- By descent (Section 4)
- Through registration (Section 5)
- By naturalization (Section 6)
- By incorporation of territory in India (Section 7)
4. Laws that applicable to Illegal Immigrants
According to the Passport (Entry into India) Act of 1920 and the Foreigners Act of 1946, illegal immigrants can be deported or imprisoned. The Central Government monitors the entry, exit, and residence of foreigners under these Acts.
Foreigners Act, 1946
The Central Government has the authority to order the deportation of a foreign individual under Section 3(2)(c) of the Foreigners Act. State governments, union territories, and the Bureau of Immigration have all been granted the power to remove or identify foreign nationals.
Passport (Entry into India) Act, 1920
As per Section 5 of this Act, the Central Government has the authority to transfer anyone who has entered India fraudulently. It covers anyone who has entered the country without a passport or who has disobeyed the passport’s terms of service.
5. Is it possible for illegal immigrants to obtain citizenship?
It is illegal for an illegal migrant to claim Indian citizenship. A foreigner who enters India illegally, that is, without adequate identification documents such as a visa and passport, or who enters India legally but stays longer than their travel documents allow, is known as an illegal immigrant. An illegal migrant in India may be prosecuted, extradited, or detained.
Between September 2015 and July 2016, the central government excused some people from being imprisoned and extradited from the category of illegal migrants.  These are illegal migrants from the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities who arrived in India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014. 
6. What alterations does the Bill recommend to the citizenship criteria?
According to the bill, some classes of illegal migrants from three nations will no actually be regarded as unlawful migrants, making them eligible for citizenship. Once they obtain citizenship, such migrants will be registered as Indian citizens from the day of their admission into India, and any court proceedings questioning their status as illegal migrants or citizenship will be canceled.
If a person meets specific conditions, the Act allows them to petition for citizenship through naturalization. One of the prerequisites is that the person must have spent the previous 12 months in India or have worked for the Indian government for at least 11 of the previous 14 years. For a specific group of illegal migrants, the number of years of residency has been reduced from eleven to five.
7. Are the Bill’s provisions applicable across the country?
The Bill says that these amendments may not applicable to certain areas like-
- Assam, Meghalaya, Mizoram, and Tripura’s tribal territories, as listed in Schedule 6 of the Indian Constitution. These tribal territories include Assam’s Karbi Anglong, Meghalaya’s Garo Hills, Mizoram’s Chakma District, and Tripura’s Tribal Places District.
- The states governed by the Bengal Eastern Frontier Regulations of 1873, which established the inner line permission. Arunachal Pradesh, Mizoram, and Nagaland are now using this permit system. Manipur was also subjected to the Inner Line Permit (ILP) regime as a result of a Gazette Notification issued on the same day the bill was passed in parliament.
8. How does the Bill alter the rules for Indian citizens living abroad?
The bill also modifies the laws for the registration of Indian citizens living abroad (OCI). Foreigners of Indian ancestry who hold an OCI card are known as OCI members. Currently, the government has the authority to revoke an individual’s OCI registration for a variety of reasons outlined in the Act. An OCI residing in India may be asked to leave the country if their visa is canceled.
9. Objections to the Amendment Act:
Issues in North –East:
- It goes against the 1985 Assam Accord, which specifies that all unlawful migrants arriving from Bangladesh after March 25, 1971, regardless of faith, will be deported.
- Critics further claim that this Amendment legislation will render the expensive exercise of updating the National Register of Citizens (NRC) null and void.
- Critics contend that it violates Article 14 of the Constitution (which guarantees the right to equality to all citizens and foreigners) as well as the constitutional ideal of secularism written in the preamble.
- The bill focuses on the religious discrimination that has occurred and continues in these three nations, thereby harming our bilateral relations with them.
10. The Government’s Position
Pakistan, Afghanistan, and Bangladesh, according to the government, cannot be called targeted minorities because they are Islamic republics with a majority of Muslims.
This bill, according to the ministry, wants to grant citizenship rather than revoke it.
The administration has declared that any other community’s application will be considered on a case-by-case basis.
11. Relationship to NRC
The National Register of Citizens is a database of all legal citizens, whose creation and upkeep were mandated by the Citizenship Act amendment of 2003. It has only been introduced for the state of Assam as of January 2020, but the BJP has claimed that it will be applied for the entire country in the 2019 election. The NRC keeps track of all legal residents so that any who are left out can be identified as illegal immigrants (often called “foreigners”). Many people were labeled “foreigners” because their documentation was judged insufficient, as the Assam NRC statement implies. 
12. Is Citizenship Amendment Act Constitutional?
The Citizenship Act is unconstitutional. In any given year, a large number of laws are passed in legislatures around the country that, in some way or another, violate people’s constitutional rights or go beyond the power of the legislature as stated by the Constitution. The CAA’s unconstitutionality is so heinous and severe because it marks a fundamental breach from the Constitution’s basic values, namely that citizenship is open to all without discrimination based on religion, language, race, ethnicity, and gender.
The amendment’s main flaw is that it only offers citizenship to Non-Muslim immigrants who have lived in the three nations for five years. Any foreigner can petition for citizenship; however, they can only be registered after living in India for 11 years, i.e. through the standard naturalization process.
 State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
Image : https://en.wikipedia.org/wiki/Citizenship_Amendment_Act_protests