© The Indian Express Pvt Ltd
Tags:
Journalism of Courage
More than four years after Parliament passed The Citizenship (Amendment) Act, 2019, the Ministry of Home Affairs on Monday notified the Rules to implement the law.
The CAA, which had led to widespread protests in the winter of 2019-20, is also under challenge before the Supreme Court. Why is the CAA contentious, and what will change after it is implemented?
In December 2019, Parliament passed an amendment to The Citizenship Act, 1955, to include a provision for grant of citizenship to migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities who entered India before December 31, 2014 from Pakistan, Afghanistan, or Bangladesh.
In essence, the amendment relaxed the eligibility criteria for certain classes of migrants (on religious lines) from three neighbouring Muslim-majority countries. Certain categories of areas, including tribal areas in Assam, Meghalaya, Mizoram, and Tripura, and areas protected by the ‘Inner Line’ system, were exempted from the purview of the CAA.
The colonial concept of Inner Line separates the tribal-majority hills of the Northeast from the plains areas. To enter and stay in these areas, an Inner Line Permit (ILP) is needed.
The law was notified on January 10, 2020 amidst protests around the country, particularly in Assam, but could not be implemented in the absence of the Rules.
On May 28, 2021, the central government issued an order under Section 16 The Citizenship Act, 1955, giving district collectors in 13 districts with high migrant populations the power to accept citizenship applications from groups identified in the 2019 amendment.
The 39-page Rules notified in the e-gazette on Monday prescribe the modalities and procedure for eligible individuals to apply for Indian citizenship. The Rules specify what documents and paperwork are required for putting forward and considering a claim of citizenship.
The amendment was challenged before the Supreme Court in 2020 by the Indian Union Muslim League (IUML). Since then, more than 200 petitions have been filed and tagged with the IUML’s challenge. These include petitions from politicians Asaduddin Owaisi, Jairam Ramesh, Ramesh Chennithala, and Mahua Moitra, and political organisations such as the Assam Pradesh Congress Committee, Asom Gana Parishad (AGP), National People’s Party (Assam), Muslim Students’ Federation (Assam), and Dravida Munnetra Kazhagam (DMK).
In October 2022, a Bench comprising then Chief Justice of India U U Lalit and Justices Ravindra Bhat and Hima Kohli passed an order stating that final hearings would begin in December 2022 after CJI Lalit’s retirement. However, the case has not been heard since.
According to the Supreme Court website, the case is currently listed before a Bench headed by Justice Pankaj Mithal.
The challenge to the CAA rests on the ground that it violates Article 14 of the Constitution, which says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The petitioners’ argue that using religion as a qualifier or a filter violates the fundamental right to equality.
The petitioners have argued that the National Register of Citizens (NRC) in Assam to identify illegal immigrants, along with the CAA, will result in the targeting of Muslims.
The court will have to look into whether the special treatment given to the so called “persecuted minorities” from the three Muslim-majority neighbouring countries only is a reasonable classification under Article 14 for granting citizenship, and whether the state is discriminating against Muslims by excluding them.
The Supreme Court has held that the law has to clear two legal hoops to pass the equality test when it is challenged on the grounds of Article 14. First, any differentiation between groups of persons must be founded on an “intelligible differentia”, and second, “that differentia must have a rational nexus to the object sought to be achieved by the Act”.
The government has said that Muslims have been excluded from the group of “persecuted” minorities because Pakistan, Afghanistan, and Bangladesh are Islamic countries where Muslims are in majority. However, it will be tested whether these three countries were picked essentially to keep Muslims out — this is because groups like Tamil Hindus in Sri Lanka, the Rohingya in Myanmar, or minority Muslim sects like Ahmadiyyas and Hazaras are also persecuted minorities in these countries.
The SC can strike down a classification if it is found to be arbitrary. The court recently struck down the electoral bonds scheme on the ground that it was “manifestly arbitrary” — that is, “irrational, capricious or without an adequate determining principle”.
There is also the larger issue of whether making religion a ground for eligibility for citizenship violates secularism, which is a basic feature of the Constitution.
Apart from the equality argument, part of the challenge to the CAA also rests on the fate of Section 6A of The Citizenship Act, 1955, which too is under challenge before the SC.
In December 2023, a five-judge Constitution Bench led by Chief Justice of India D Y Chandrachud reserved its verdict on the validity of Section 6A, which was introduced in the Citizenship Act after the signing of the Assam Accord between the Centre and the leaders of the Assam movement in August 1985.
The Accord determines who is a foreigner in the state of Assam. Clause 5 of the Accord states that January 1, 1966 shall serve as the base cut-off date for the detection and deletion of “foreigners”, but there are provisions for the regularisation of those who arrived in the state after that date, and upto March 24, 1971. This was also the basis of the final NRC published in 2019.
Section 6A of the Act allows foreign migrants who came to Assam after January 1, 1966 but before March 25, 1971, to seek Indian citizenship. If the effective cut off date of March 24, 1971 is upheld by the SC as the cut-off date for entry into the state, the CAA could fall foul of the Assam Accord, since it creates a different timeline.
