Analysis Of The Citizenship (Amendment) Act, 2019 – By Suraj Metta

DSV

4 years ago

(A brief description of the bill followed by FAQ)

INTRODUCTION

The Citizenship (Amendment) Act, 2019 has been one of the most controversial legislation in the current times. Much legal literature has been published on the legality/constitutionality of the act. But very few have tried to demystify the bill and provide a legal description of the content in the bill. This article provides the section-wise description of the act along with answering the frequently asked questions to demystify the bill.

Also, there have been many protests going on in India opposing the passing of the legislation like Shaheen Bagh Protests etc. This article also tries to answer common questions posed by them regarding the bill.

INFORMATION REGARDING THE ACT

The Bill has received the presidential assent on 12^th December 2019 amid many protests going in the country against the passing of the bill. The bill has henceforth started being called as The Citizenship (Amendment) Act, 2019. The Act was intended to amend the provisions of Citizenship Act, 1955 which relates to the citizenship provisions of India. The Act came into effect from 10^th January 2020.

CHANGES MADE BY THE CITIZENSHIP (Amendment) ACT, 2019 TO

The Citizenship (Amendment) Act, 2019 made many changes to the Citizenship Act,1955 (Principal Act here) the changes made were described below.

1)Amendment of Section 2

The Citizenship (Amendment) Act, 2019 amends the section 2, sub-section (1), clause (b) which describes Illegal Immigrant. The principal act determines illegal immigrant as anyone entered India

1)Without any valid document or passport.

2) Entered with passport or valid document but stayed beyond the permitted time.

After the amendment, the clause reads like this

“Provided that 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 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as an illegal migrant for this Act;”

So, this Act relaxes norms for immigrants from some categories to gain citizenship by declassifying them from illegal immigrants. It declassifies sections of people who are,

Belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, and Christian Community.
Belonging to Afghanistan. Bangladesh, and Pakistan.
Entering India on or before 31^st December 2014.
Exempted by Indian Government under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946. Here clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 empowers Indian government to declare a person or a class to be exempted from the application of Passport Act, 1920 either absolutely or under any conditions.

People who have fulfilled the above criteria were not illegal immigrants after the act came into effect.

2) Insertion of Section 6B

Section 6 Talks about provisions of citizenship by naturalisation, Section 6A talks about provisions of citizenship by naturalisation of people affected by Assam Accord, Section 6B was inserted for provisions of people who are affected by amending section 2, sub-section (1), clause (b) i.e. Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan and others who are included by amending Section 2 of the Citizenship Act, 1955.

The conditions applied to such people are as follows

The Central Government or any such authority may grant citizenship of naturalization to such persons subject to conditions.
Such naturalised persons are deemed to be citizens of India from entering India before the date specified.
The Act protects such people who are facing charges for illegal immigration before the act came into force. It abates all the proceedings against such people for illegal immigration. It also states that people are not disqualified from making the application to seek benefit from the act on grounds of charges of illegal immigration against them. It also protects privileges and rights conferred to such people on grounds of making application according to the act.
The Act doesn’t apply to the tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873. So, people in these tribal areas or the “Inner Line” areas will not be normalised as citizens according to the above act.

3) Amendment of Section 7D

Section 7D of the principal act deals regarding the Cancellation of registration as Overseas Citizen of India Cardholder. So, the Citizenship (Amendment) Act, 2019 seeks to amend some provisions of the section.

The 7D (d) of the principal act says that any OCI cardholder convicted for offences which include imprisonment not less than 2 years within 5 years of registration.
The new act adds new clause 7D (da) which includes violation of this act or any law in force at that time in India. This means any OCI cardholder may lose his card if he/she violates this act or any other law in force at that time.
The 7D (f) of the principal act says that any OCI cardholder who is of foreign origin and obtained OCI card on basis of marrying Indian Citizen/OCI, their card will be cancelled if their marriage is dissolved or if they solemnize another marriage in the subsistence of their previous marriage.
The new act includes a provision which says such affected person should be given a reasonable opportunity of being heard before termination of their OCI.

4) Amendment of Section 18

Section 18 of the principal act gives the power to make rules to the central government. Clause (2) of Section 18 describes what powers do the government has regarding making rules regarding the Citizenship Act, 1955.

A new clause (eei) was introduced which includes the conditions, restrictions and manner for granting the certificate of registration or certificate of naturalisation under sub-section (1) of section 6B.
This clause gives the power to the central government to make their conditions and restrictions on granting citizenship to the people who are getting citizenship under the Citizenship Act, 1955.

5) Amendment of Third Schedule of Citizenship Act, 1955

The Third Schedule of the principal act states qualification for naturalisation of citizenship in India. Clause (d) states the aggregate period of residence or service of Government in India should be 11 years in the span of 14 years to be naturalised as the citizen of India. Now the new act reduces the aggregate period for a person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan to 5 years instead of 11 which is applicable for others.

These are the following changes made to the Citizenship Act,1955 by the new Citizenship (Amendment) Act,2019. Except for these changes no other changes were made by the government by any ordinance or any means whatsoever during the period.

Frequently Asked Questions

Does it remove citizenship to Muslims who are Citizens of India?

A)The Act in no manner removes citizenship of any Indian of any religion, it is only an inclusionary act to provide illegal immigrants, citizenship of India rather than excluding Indian Citizens.

After NRC is conducted people from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities are protected by this act from being excluded but Muslims will be excluded from India?

A)First, it happens when NRC is conducted, CAA in no manner is related to the exclusion of citizens, it only related to non-Muslims of Pakistan, Bangladesh, and Afghanistan. Separate legislation is needed to be passed if as to give excluded Indian Non-Muslims citizenship. CAA doesn’t provide citizenship to such people.

Ex: If an Indian Hindu from Andhra Pradesh is excluded in NRC he/she cannot be included by using CAA. He will be treated on par with Indian Muslim excluded. If the government want to exclude non-Muslims from losing citizenship by NRC separate legislation needs to be passed. However, NRC has to be conducted in the first place if this should happen.

Leaves out only Muslims?

A)The legislation leaves out only Muslims from Pakistan, Bangladesh, Afghanistan as it feels they are not persecuted, they can be included with proof of persecution by quantifiable data.

Does it violate article 14 as the bill is against equal treatment of people of different religions?

A)However, if the government can establish that there is intelligible differentia in discriminating communities they can pass the test. However, the petition is still pending in the Supreme Court and the legislation has to pass the judicial review.

Muslims from Pakistan, Bangladesh, Afghanistan cannot get citizenship after passing of the Act?

A)No, Muslims from these countries can still get citizenship of India by obtaining formal visa process. There is no discrimination as such in obtaining citizenship.

Persecuted Communities such as Ahmadiyyas. Hazaras cannot get citizenship by the act?

They can still file a formal application and can get FastTrack Citizenship if they face persecution. There is no ban against it by CAA.

Some persecuted religions like Judaism are not included?

A)There no proper data with the government to declare them persecuted. However, there is no remedy for them under CAA to get citizenship.

Does it violate freedom of religion?

A)Freedom of religion is not violated as citizenship cannot violate freedom of religion in itself and it applies only to Indian Citizens and foreigners cannot claim Right to Religion.

Are there detention centres for illegal immigrants?

A)Detention centres are being built and already built in India. These are for housing illegal immigrants under trial. People convicted of illegal immigration are jailed and detention centres are only for people undertrial. These detention centres include facilities for education, health, recreation etc.

NPR is conducted to use the data for NRC?

A)The government might use the data but still, the government didn’t declare it will use any data for NRC. It only just said it will conduct NPR only for registering citizens. However, there is no conclusion here.

Is CAA not applicable in states which passed a resolution against it?

A)Citizenship is a Central subject and the state don’t have any power in not implementing it. Art.245, Art.256 says Parliament can legislate laws within its powers and Art.256 forces state governments to implement those laws.

Is CAA against Women, Dalits, Transgenders?

A)CAA doesn’t have criteria based on gender, caste etc. It only has religion as criteria. It is a misconception that it is against vulnerable communities. However, some argue that if NRC is implemented and government forces to show documents. These vulnerable communities might not lack papers to prove their citizenship. The issue only occurs if government forces to show papers to prove citizenship.

CAA is Unconstitutional?

A)More than 60 petitions are filed challenging its legality. It is up to the Supreme Court to do Judicial Review and decide the constitutionality of the law.

Does it change the demographic status of North-eastern states of India?

A)CAA doesn’t apply to the tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873. So, people in these tribal areas or the “Inner Line” areas will not be normalised as citizens according to the above act.

Note :

The following analysis is the opinion of the respective author based on his understanding. This cannot be used as legal advice or material. Neither Katcheri.in nor the author are responsible for any possible loss occurred from using it.