Citizenship Amendment Act 2019 (CAA) - Bill Explained in Detail for UPSC

It is against Muslims

• The fundamental criticism of the Act has been that it specifically targets Muslims. Thus, the religious basis of citizenship not only violates the principles of secularism but also of liberalism, equality, and justice.
  • It fails to allow Shia, Balochi, and Ahmadiyya Muslims in Pakistan and Hazaras in Afghanistan who also face persecution, to apply for citizenship.
  • A key argument by the critics against the CAA is that it will not extend to those persecuted in Myanmar and Sri Lanka, from where Rohingya Muslims and Tamils are staying in the country as refugees.

It violates Article 14

• Critics argue that it is violative of Article 14 of the Constitution, which guarantees the right to equality.
  • The CAA is in the teeth of Article 14, which not only demands reasonable classification and a rational and just object to be achieved for any classification to be valid but additionally requires every such classification to be non-arbitrary.
  • One of the criticisms is that this Act is an instance of class legislation, as classification on the ground of religion is not permissible.

Why North East is objecting to CAA?

• In the Northeastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties, including fears of demographic change, loss of livelihood opportunities, and erosion of the indigenous culture.
• The Act appears to violate the Assam Accord, both in letter and spirit.
  • The Assam Accord, signed between the then Rajiv Gandhi-led central government and the All Assam Students’ Union (AASU), had fixed March 24, 1971, as the cutoff date for foreign immigrants. Those illegally entering Assam after this date were to be detected and deported, irrespective of their religion.
  • The Citizenship Amendment Act moved the cutoff date for six religions to December 31, 2014, something that is not acceptable to the Assamese-speaking people in Brahmaputra Valley, who insist that all illegal immigrants should be treated as illegal.
• There is also an economic problem. If tens of thousands leave Bangladesh and start staying legally in Assam and North East, the pressure will first show in the principal economic resource—land.
  • Also, since these will be legitimate citizens, there will be more people joining the queue of job hopefuls that can potentially lower opportunities for the indigenous and the locals.
• It also boils down to the political rights of the people of the state. Migration has been a burning issue in Assam.
  • There is a view that illegal immigrants, who will eventually become legitimate citizens, will be determining the political future of the state.

Other issues surrounding CAA

• CAA does not consider Jews and atheists. They have been left out of the Act.
• The basis of clubbing Afghanistan, Pakistan, and Bangladesh together and thereby excluding other (neighbouring) countries is unclear.
  • A common history is not ground as Afghanistan was never a part of British India and was always a separate country.
• Countries such as Nepal, Bhutan, and Myanmar, which share a land border with India, have been excluded.
  • The reason stated in the ‘Statement of Objects and Reasons’ of the Act is that these three countries constitutionally provide for a “state religion”; thus, the Act is to protect “religious minorities” in these theocratic states.
  • The above reasoning fails with respect to Bhutan, which is a neighbour and constitutionally a religious state with the official religion being Vajrayana Buddhism.
    • Non-Buddhist missionary activity is limited, construction of non-Buddhist religious buildings is prohibited and the celebration of some non-Buddhist religious festivals is curtailed. Yet, Bhutan has been excluded from the list.
  • Focus only on religious persecution:
    • On the classification of individuals, the Act provides benefits to sufferers of only one kind of persecution, i.e. religious persecution neglecting others.
    • Religious persecution is a grave problem but political persecution is also equally existent in parts of the world. If the intent is to protect victims of persecution, the logic to restrict it only to religious persecution is suspect.
  • As per critics, the provisions of the CAA will deny equal protection of laws to similarly placed persons who come to India as “illegal migrants” but in fact grant citizenship to the less deserving at the cost of the more deserving.
    • As per critics, the provisions of CAA might lead to a situation where a Rohingya who has saved himself from harm in Myanmar by crossing into India will not be entitled to be considered for citizenship, while a Hindu from Bangladesh, who might be an economic migrant and have not faced any direct persecution in his life, would be entitled to citizenship.
    • Similarly, a Tamil from Jaffna escaping the atrocities in Sri Lanka will continue to be an “illegal migrant” and never be entitled to apply for citizenship by naturalization.
  • There is also a reduction in the residential requirement for naturalization — from 11 years to five. The reasons for the chosen time frame has not been stated.

It is not against Muslims

• The Ahmediyas and Rohingyas can still seek Indian citizenship through naturalization (if they enter with valid travel documents).
  • In any case, since India follows the principle of non-refoulment (even without acceding to the Refugee Convention 1951), they would not be pushed back.
  • If a Shia Muslim is facing persecution and is in India seeking shelter, his case to continue to reside in India as a refugee shall be considered on its merits and circumstances.
  • With regard to Balochi refugees, Balochistan has long struggled to be independent of Pakistan and including Balochis in the CAA could be perceived as interference in Pakistan’s internal affairs.
  • The CAA, therefore, does not exclude Muslims from Pakistan, Bangladesh, and Afghanistan to apply for Indian citizenship. They can continue to do so in the same way singer Adnan Sami, for example, applied for citizenship.
• It is important to note that even minorities shall not be granted automatic citizenship. They would need to fulfill conditions specified in the Third Schedule to the Citizenship Act, 1955, namely, the good character requirement as well as physical residence in India.
• Harish Salve, one of India’s biggest names in national and international law, has stated that the Citizenship Amendment Act is not anti-Muslim.
  • Salve stated that the countries specified in the CAA have their own state religion and Islamic rules. He added that Islamic majority nations identify their people as per who follows Islam and who does not. Addressing governance problems in neighbouring countries is not the purpose of the CAA.
  • Over the issue of Rohingyas, Salve stated that a law that addresses one evil does not need to address all the evils in all countries. It is notable here that Myanmar, though a Buddhist majority nation, does not have a state religion and Myanmar does not feature in the CAA bill.

The Act is not a violation of Article 14

Sovereign space

• To begin with, the justiciability of citizenship or laws that regulate the entry of foreigners is often treated as a ‘sovereign space’ where the courts are reluctant to intervene.
  • Thus in Trump v Hawaii No. 17-965, 585 U.S. (2018), the US Supreme Court upheld a travel ban from several Muslim countries holding that regulation of foreigners including ingress is “fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.”
  • Indian courts have generally followed similar reasoning. In David John Hopkins vs. Union of India (1997), the Madras High Court held that the right of the Union to refuse citizenship is absolute and not fettered by equal protection under Article 14.
  • Similarly in Louis De Raedt vs. Union of India (1991), the Supreme Court held that the right of a foreigner in India is confined to Article 21 and he cannot seek citizenship as a matter of right.

With respect to North East

• Citizenship Amendment Act does not dilute the sanctity of the Assam Accord as far as the cut-off date of March 24, 1971, stipulated for the detection/deportation of illegal immigrants is concerned.
• Citizenship Amendment Act is not Assam-centric. It applies to the whole country. Citizenship Amendment Act is definitely not against the National Register of Citizens (NRC), which is being updated to protect indigenous communities from illegal immigrants.
• Further, there is a cut-off date of December 31, 2014, and benefits under the Citizenship Amendment Act will not be available for members of the religious minorities who migrate to India after the cut-off date.

Historical Connections

• The Act does not give a carte blanche to Hindus and Christians and Sikhs from other countries to come to India and get citizenship. Just these three countries. Why?
• Because each of these has been civilizational ties with India. The circumstances in which they were partitioned from India have created a situation where Hindus and other minority populations have been dwindling ever since the partition took place.
• Regarding including other countries in the neighbourhood the argument could be that we can deal with them separately if the need arises as we did in the case of persecuted Sri Lankan Tamils.

• It was an agreement between the Governments of India and Pakistan regarding Security and Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan
• The need for such a pact was felt by minorities in both countries following Partition, which was accompanied by massive communal rioting.
• In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.

Under the Nehru-Liaquat pact

• refugees were allowed to return unmolested to dispose of their property
• abducted women and looted property were to be returned
• forced conversions were unrecognized
• minority rights were confirmed

What did India and Pakistan agree upon?

• “The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the pact said.
• “Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other offices, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively.”

Context

• Amit Shah referred to the Nehru-Liaquat pact on a few occasions in Parliament to justify the Citizenship Act.