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  • Anjali

CAA : perfectly legal and constitutional or not

Written by : Anjali, LL.B, Lovely Professional University



Introduction:

The government has the power to make laws for people. CAA is one of them which was first

introduced in 2016,and in 2019 it was passed by parliament. It is applicable only for Hindu, Sikh,

Jain, Buddhist, Parsi and Christian foreigners, who have migrated from Pakistan, Bangladesh,

and Afghanistan into India up to 31.12. 2014, on account of religious persecution. The CAA is

perfectly legal and Constitutional or not.... Under Article 246 of the Constitution, the Parliament

has got the exclusive power to make laws with respect to any matters listed in the list one in

7thSchedule.The Citizenship (Amendment) Act, 2019 (hereafter 'CAA') amends the Citizenship

Act, 1955 so as to grant a certain class of illegal migrants a path to Indian citizenship.

Background:

The Citizenship Amendment Bill was introduced in the Lok Sabha in 2016 which proposed a

change in the Indian Citizenship Act of 1955. Then the bill was sent to the Joint Parliamentary

Committee for review and after that it was passed in Lok Sabha on 8th January 2019, but due to

the dissolution of the 16th Lok Sabha in May, 2019 the bill lapsed.

The bill was reintroduced in the 17th Lok Sabha on 9th December 2019 by Amit Shah (Minister

of Home Affairs) and passed on 10th December, 2019. Later on, Rajya Sabha also passed the

bill on 11th December, 2019. By receiving the assent of the President it came into force on 12th

December, 2019.

CAA enunciates two classifications

*Religion-specific classification:

It treats a religious denomination as a whole as distinct group or class: it amends

Section 2(1)(b) of the Citizenship Act by conferring discretion upon the Union Government to

exclude Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the definition of ‘illegal

immigrants’, thereby prioritizing these religious communities over others.

*Country-specific classification:

It is limiting the scope of acquiring citizenship to immigrants belonging to the enumerated

minority communities from Afghanistan, Pakistan and Bangladesh.

Objective:

*The objective of CAA is to make eligible to make sure the citizenship of person who faced

persecution on the ground of religion.

*The law paves way to grant Indian citizenship to certain classes of illegal immigrants from

neighbouring countries.

*India is an independent, secular, and peace-loving nation.India is the one nation in the world

that has been able to justify the motto of ‘Unity in Diversity'. Maybe this is the reason why

people from many nations want Indian Citizenship.


Argument in favour:

No discrimination:The government said that this amendment act has not discriminate

between people,and there is no inequality. The Parliament has only got sovereign powers to

legislate or make laws on Citizenship.

Equality: Article 14, that is equality before law and equal protection before law.Everyone is

equal in the eyes of law. Therefore, this CAA does not relate to any Indian,not even Muslims.

Neither does it create any citizenship to them nor takes it away.

No dispute between people on the bases of religion: The citizenship of a country is presently

based on similar principles followed in almost all countries governed by the rule of law.

Citizenship is acquired by birth, descent, naturalisation or by acquisition of territories.If a person

acquire citizenship by legal method which is prescribed by government then there is no dispute.

The government , however, maintains that bill aims to grant Citizenship to minorities who have

faced religious persecution in Muslim majority foreign countries.

Issues:

Violation of fundamental rights:*The fundamental criticism of this bill has been that it

specifically targets Muslims community.

Critics argue that it is the violation of Article 14 of the Indian constitution,that is right to equality.

Oppose by North East States: The North-east states are against this bill as they believe it wil

lead to a greater influx of illegal migrants.

In North East States, the prospect of citizenship for massive numbers of illegal Bangladeshi

migrants has triggered deep anxieties, including fears of demographics change,loss of many

opportunities, and livelihood,erosion of the indigenous culture.

Stress on natural resources: Increase in illegal migrants it stress on natural resources and it is

also dangerous for national security.

Discrimination between Hindus and Muslims: In this way , people said it is discrimination

between people so, India doesn't call them a "secular state".

The citizenship to illegal migrants only of six communities .It also lower the qualification period

for Indian citizenship from eleven to five years.

This act was widely criticized as discrimination on the basis of religion.

View points:

It has check on entry, exit and resistance of foreigners or illegal migrants of six communities.

It will enable a person who doesn't have proof of birth of his parents in support of his being of

Indian origin to apply for citizenship by naturalisation on completion of six years residency.


All cases against a non Muslim illegal migrants before any authority, included foreigners

tribunals or courts,shall stand abated. The courts are less burden. Many cases resolve and it

low the burden of courts.

Some people are supposed CAA because they said they want to protect their culture and

religion. But people also criticized it on the basis of violation of fundamental rights and

secularism which is the basic structure of the constitution of India. It harms the feeling of people.

"CAA is like double edged sword,it have benefits as well as damages also."

Citizenship Act 1955, it created a path to citizenship by birth. Under it, any person born in India

after the Constitution came into force(26 January 1950), was considered an Indian citizen,

regardless of whether or not his parents were illegal immigrants. We have seen that this

changed in 2004. That year, Parliament amended the Citizenship Act, 1955, and did away with

citizenship by birth from 1 July 1987. Those born after that date but before 3 December 2004

had to prove that at least one of their parents was an Indian citizen. Those born after 3

December 2004 had to prove either that both their parents were Indian citizens or that one was

an Indian citizen and the other was not an illegal migrant24. This is difficult for many to do.

Members of Indian’s transgender community, who are abandoned by their parents at birth for

them it will be very difficult to prove their own birth, or the birth of their parents in India. The

same goes for orphans it will be very difficult for them also to prove their own birth or the

citizenship of their parents whom they never knew.

Linking of NRC and CAA:

The linking of the NRC and the CAA,2019 to argue that people belonging to the 6 communities

the Act mentions will be given priority over Muslims if both stand excluded as a result of the

implementation of a nationwide NRC is troublesome. The CAA grants citizenship to persons

belonging to communities in minority in Pakistan, Bangladesh and Afghanistan who came to

India on or before December 31, 2014. Thus, the Act is not wide enough to include in its ambit

all persons belonging to these communities, irrespective of where they come from and the date

on which they started residing in India.

Not Applicable to certain areas:

The Act is not applicable to areas under the Sixth Schedule of the Indian Constitution. These

areas, located in Assam, Meghalaya, Tripura, and Mizoram, are autonomous tribal-dominated

regions. The Act also excludes states with the inner-line permit regime, such as Arunachal

Pradesh, Nagaland, and Mizoram. These regions have a significant tribal population and are

sparsely populated. Critics fear that an influx of immigrants, regardless of their religion, could

disrupt the region’s culture and voting patterns.

Conclusion:

After the Bill was passed,the Indian union Muslim league filed a petition under article 32 of the

Indian constitution challenging the constitutionality of CAA. Soon various other litigants

followered and there are around 250 or more than petitions tagged to IUML petition.

The parliament has unfractured powers to make laws for the country when it comes to

Citizenship. But the opposition and other political parties allege this Act by the Government

violates some of the basic features of the constitution like secularism and equality.


It may reach the doors of the Supreme Court where the Supreme Court will be the "final

interpreter". If it violates the constitutional features it will be struck down, if it is not we will

continue to have the law.

Reference:

1.https://thefederal.com

2.https://www.livelaw.in

3.https://Indianexpress.com

4.https://www.ndtv.com

5.https://oldindiatomorrow.net

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