Citizenship Amendment Act, 2019 - An unconstitutionally constitutional Act

Citizenship Amendment Act, 2019

Citizenship Amendment Act, 2019 which seeks to amend the Citizenship Act, 1955 was passed by the parliament of India in December, 2019 which brought massive criticism against the government for being biased against Muslims. As already known, the act specifically excludes Muslim citizens of Bangladesh, Pakistan and Afghanistan from acquiring the citizenship of India in the reduced time limit. Although they can acquire the citizenship of India through the old naturalisation process where the immigrant needs to live 11 years in the last 14 years and at least one year continuously in India.

The Citizenship Amendment Act, 2019  for the first time in the history of independent India, law of land recognised some illegal immigrants as refugees and promised them citizenship in a lesser amount of time provided that they are religiously persecuted. While citizenship through naturalisation can be acquired in 11 years, a refugee will be given citizenship in 5 years. Before the bill was passed an illegal immigrant was defined as a person who has entered India either without valid documents or has lived more than the allowed period of time.

This bill followed massive protests and various PILs and petitions under Article 32 of the Indian Constitution, with various people starting to call it a communal, anti-Muslim and unconstitutional bill. While there exists no real criteria to decide for the first two, the bill can be examined on the principles of the constitution. 

The Citizenship Amendment Act seeks to provide Indian citizenship to the religiously persecuted minorities of the three countries, Pakistan, Afghanistan and Bangladesh. While the amendment nowhere mentions the word “religiously persecuted”, the ministers and parliamentarians supporting the act have said that this act will only give citizenship on the basis of religious persecution.

While Article 14 of the Indian Constitution provides anyone living in India with equality before the law and equal protection of the law, it is not absolute in nature. In its various judgements, the Supreme Court has said that the greater good may prevail. 

In the very famous Minerva Mills case, 1980 the Supreme Court of India observed that the law under Article 31C will be protected if it is made to implement directives in Article 39(b) and 39(c) even if it is violative of Article 14. The same can be said about this act as it is extended to the people who are facing religious persecution in the above-mentioned countries. 

When questions were raised about choosing these three countries only, Home Minister Amit Shah had replied in the Parliament that these three countries have a state religion and the people belonging to other religions are persecuted systematically by both state and non-state actors.

Major examples of which was food being denied to the Hindu minorities in Pakistan in the ongoing COVID-19 pandemic and the attack on the gurudwara in Afghanistan where many died and several were injured.

Criticisms of this act also raised questions of why not recognise all the religiously persecuted refugees from every country? To which the Home Minister had said that various provisions as per the requirement of time have come in the past, including giving citizenship to Tibetan refugees, Bangladeshi refugees after 1971 war, Tamil refugees from Sri Lanka and further provisions will be made if necessary. This act was also criticised for leaving the atheists out, as there have been a considerable number of attacks in the past on atheists in Bangladesh.

The new Citizenship Amendment Act also brought various changes in regards to the areas protected under the sixth schedule and inner line permit. The act protects those areas from illegal and legal immigration of the refugees. There were huge protests in the north-east when the bill was introduced earlier. As there have always been illegal infiltrations of Bangladeshis in the areas of the northeast, especially Assam which as per the protestors is detrimental to the culture and language of Assam and Assamese identity.

The Citizenship Amendment Act also amended various clauses related to the OCI (Overseas Citizens of India) cardholders. This act empowers the government or the competent authorities to cancel the OCI cards of the cardholders if they are found in violation of any act of the Government of India including the Citizenship Amendment Act, 2019. The amendment also provides the OCI cardholder in question, with an ample amount of time to speak their reasonings.

The act has been challenged in the Supreme Court of India and is under judicial review. The apex body on various occasions has rejected the pleas to stay the Act and is expected to give a judgement on it soon.

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