DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

2020-2021

Final Draft submitted for the project work undertaken in the partial
fulfillment of B.A. LLB. (Hons)

TOPIC -CITIZENSHIP ACT: A DEMOCRACY ON STEPS OF MONOCRACY

Submitted to: Submitted by:

Dr. RAJNEESH K. YADAV Raj Kunwar Singh

Professor in Law Enroll- 160101118

Semester: IX

Section: B
TABLE OF CONTENTS

a. INTRODUCTION
THE CAA,2019
1) PATHS TO INDIAN CITIZENSHIP
2) ARTICLE 14 AND CAA
3) CLASSIFICATION
4) LEGAILITY
c. CONCLUSION
d. BIBLIOGRAPHY
INTRODUCTION

Citizenship is one of the most essential components of a persons identity. It is a necessary

for the person to exercise his rights and liberties to the fullest. The recently enacted
Citizenship (Amendment) Act, 2019 (CAA) has caused a great deal of political upheaval
in India. Though ostensibly designed to grant a benevolent pathway to Indian citizenship
for certain minorities that fled religious persecution in Pakistan, Bangladesh or
Afghanistan, it has widely been perceived as a stunt by the Hindu political right in India
to attempt to strip Indian Muslims of their citizenship rights. The enactment of the statute
was followed by the most widespread and widely covered political protests in India in
recent memory, in which the central argument was that the CAA violates the secular
spirit of the Indian Constitution. “Secularism” is a relatively recent word and one of
imprecision.1 Unlike the American “wall of separation” model of secularism in which the
Constitution prohibits “established” religions, the European model where there is an
established state religion but non-believers have the right to hold their own beliefs, and
the French model of laicité or antipathy towards religion in the public sphere,2 Indian
secularism requires the state to reform religious practices. For instance, the Constitution
abolished untouchability and threw Hindu religious places of worship open to all,
including “untouchable” castes – substantial reforms of regressive customs in Hinduism.
Secularism originally found no mention in the Indian Constitution. It was inserted,
somewhat disingenuously, into the preamble to the Constitution in 1976 during a national
emergency, by Prime Minister Indira Gandhi whose electoral symbol was a cow
(considered sacred in Hinduism) suckling a calf. Yet, members of the Constituent
Assembly who drafted India’s Constitution between 1947-50 frequently invoked the
word “secularism”. It was understood by them that contrary to Pakistan, India would be a
place which would welcome all religions with open arms as it had done for centuries. ,
India would be a place which would welcome all religions with open arms as it had done
for centuries. Secularism has been held by the Supreme Court to be a part of the “basic
structure” of the Indian Constitution and of “constitutional morality”3.
In recent times, however, “secularism” in India has fallen into disrepute. It has

1
Abhinav Chandrachud, Republic of Religion: The Rise and Fall of Colonial Secularism
2
Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court
3
Abhinav Chandrachud, “Is ‘Constitutional Morality’ a Dangerous Doctrine”, Bloomberg Quint, 19 December
2019
 been associated with the opportunistic vote-bank politics of previous regimes in which
religious minorities, particularly Muslims, were “appeased” at the cost of and against the
interests of the Hindu majority. The Hindu right, consisting of the Bharatiya Janata Party
(BJP) and the Rashtriya Swayamsevak Sangh (RSS), has risen swiftly to power in recent
years. In 2014 and 2019, it convincingly won India’s general elections and secured a
majority in Parliament that had not been seen since the 1980s, enabling it to rule the
country without the sobering support of regional coalitions. The Hindu right has openly
advocated the abandonment of secularism and embraced political “Hindutva”. Its
legislative policies, of late, have tended towards muscular majoritarianism – abrogating
the special constitutional status of the Muslim-majority state of Jammu and Kashmir,4
enacting a law criminalizing the practice of triple talaq in Islam, and opposing the
Supreme Court’s judgment allowing menstruating women to enter the Sabarimala temple
in the State of Kerala. The CAA is the latest law which forms part of the ambitious
legislative reform agenda of the ruling regime in India.
This work examines the provisions of the CAA against the backdrop of the
citizenship provisions of the Indian Constitution. It argues that contrary to popular belief,
the discrimination against Muslim immigrants which seems to form a part of the CAA is
not a phenomenon of relatively recent vintage. At the founding of India’s republic,
leaders with otherwise unmistakably secular credentials, like Nehru and Ambedkar,
brought about provisions which discriminated against Indian Muslims who had migrated
to Pakistan and wished to return to India. This paper argues that by articulating a
preference towards non-Muslim immigrants and discriminating against Muslim
immigrants, the CAA is vaguely reminiscent of policies adopted by the Indian
government at the time of the partition of the country and the framing of the Constitution.
However, this paper will then argue that the CAA is unconstitutional by today’s standards
because the conditions which existed during the days of India’s dominionship, between
August 1947 and January 1950, viz., partition-era housing shortages and a communal
environment charged by millions of refugees, no longer exist in India today. It posits that
the CAA is discriminatory for several reasons though not for the insidious, mala fide
reasons that are usually attributed to the government in popular discourse. However, this
paper also argues that India’s citizenship laws amplify the problems with the CAA, by
casting the evidentiary burden of proof on Indians to prove their citizenship, by abandoning
4
“The Abrogation of Article 370” BY ABHINAV CHANDRACHUND
the principle of citizenship by birth, by failing to give judges of foreigners tribunals security
of tenure, and by omitting a safe harbor for Muslim “dreamers” who illegally came to India
as minors with their parents, by no fault of their own, and who have only known India to be
their homeland since childhood.

THE CITIZENSHIP (AMENDMENT) ACT, 2019:

1. THE CAA IS DISCRIMINATORY: THE PATHS TO INDIAN

CITIZENSHIP:

There are several routes to citizenship under the Citizenship Act, 1955: birth, descent,
registration, naturalization and acquisition of a foreign territory.5 Prior to an amendment.
in 2004,6 any person born in India after 26 January 1950 was considered to be a citizen of
India, regardless of whether one or both of his or her parents were illegal immigrants.
After the amendment, a person born in India after 26 January 1950 but before 1 July 1987
is an Indian citizen regardless of whether one or both of his or her parents were illegal
immigrants.7 A person born in India on or after 1 July 1987 but before 3 December 2004,
is a citizen if one of his or her parents was a citizen of India at the time of his or her birth,
even if the other was an illegal immigrant. However, those born in India after 3
December 2004, are only Indian citizens if both parents are citizens of India or if one
parent is a citizen of India and the other is not an illegal immigrant at the time of his or
her birth.This signifies a shift in Indian citizenship law from jus soli (citizenship by birth)
to jus sanguinis (citizenship by descent).8

The citizenship by descent route applies to those born outside India. Under this path, a
person born outside India after 26 January 1950 can be a citizen if either his father or
mother was a citizen at the time of the former’s birth. There are complicated rules that
govern this route to citizenship. A person born outside India after 26 January 1950 but
before 10 December 1992 can be a citizen under this route if his father was a citizen at
5
The concept of an “overseas citizen of India cardholder” was brought about in the Citizenship Act, 1955, by
virtue of amendments in 2004 and 2015.
6
Citizenship (Amendment), 2003 (Act No. 6 of 2004).
7
Phuntsok Wangyal v. Ministry of External Affairs, (2016) SCC Online Del 5344
8
, Mihika Poddar, “The Citizenship (Amendment) Bill, 2016: International Law on Religion-Based
Discrimination and Naturalisation Law”, Indian Law Review
 the time of the former’s birth. A person born outside India on or after 10 December 1992
can be a citizen if either his father or mother was an Indian citizen at the time of the
former’s birth. The rules get a little more complicated if the father or mother were
citizens by descent only. After 3 December 2004, a person cannot be registered as a
citizen by descent unless his birth is registered at an Indian consulate within a certain
time-frame.9
Generally speaking, citizenship by “registration” was meant for people of Indian
origin, the spouses or children of Indian citizens, and, for a while, the citizens of
Commonwealth countries. Naturalization provided a path to citizenship for those with
absolutely no ancestral connection to India.10 If India acquires any foreign territory, the
central government can notify persons connected with that territory as citizens of India.
Importantly, by virtue of the 2004 amendment, an “illegal migrant” cannot seek
citizenship by registration or naturalization. 11 An “illegal migrant” is a foreigner who
enters India illegally, i.e., without a valid travel document. 12 The CAA now carves out an
exception for the members of some religious communities from Pakistan, Bangladesh or
Afghanistan who entered India illegally before 31 December 2014 fearing religious
persecution, and enables them to obtain citizenship by registration or naturalization
despite their illegal entry into India.

(a) Article 14 and the CAA:

In 1985, the Citizenship Act was amended to give effect to the Assam Accord. 13 The
Assam Accord was an agreement struck between the government of India and leaders of
the “Assam Agitation” which had taken place between 1979-85 to protest voting rights
being given in Assam to illegal immigrants. Under this regime, a person of Indian origin
who arrived in Assam prior to 1 January 1966 from Bangladesh and was resident in
Assam since then was deemed to be an Indian citizen. Persons of Indian origin who
arrived in Assam on or after 1 January 1966 but before 25 March 1971 (i.e., the date on
which the Bangladesh War commenced14), and resided in Assam since then, if detected to
9
Section 4, Citizenship Act, 1955
10
Section 5, Citizenship Act, 1955
11
Section 7, Citizenship Act, 1955.

12
Section 2(1)(b), Citizenship Act, 1955.

13
Section 6A, Citizenship Act, 1955
14
Ibid
 be foreigners, were to get all rights to Indian citizenship except voting rights for ten
years, and even voting rights thereafter. Anyone who came to Assam thereafter was to be
deported. However, the process of detecting and expelling foreigners in Assam was never
properly enforced, which is why the Supreme Court eventually stepped in to expedite the
process of its enforcement in Assam Sanmilita Mahasangha v. Union of India 15 and other
cases.
Under the Foreigners Act, 1946, a “foreigner” is a person who is not a citizen of
India.16 The government has the power to deport a foreigner who comes to India without
a valid passport.17In September 2015, after the Supreme Court had stepped in to enforce
the Assam Accord provisions of the Citizenship Act, the central government issued a
notification which said that members of certain minority communities in Bangladesh and
Pakistan (and later Afghanistan), viz., Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians, who were “compelled to seek shelter in India due to religious persecution or
fear of religious persecution” and who entered India before 31 December 2014 could not
be deported for entering India illegally or overstaying.

In 1951, a National Register of Citizens (NRC) was prepared for all the provinces during
the census, under a direction issued by the Home Ministry of the central government. 103
In 2003 and 2009, rules were enacted under the Citizenship Act for preparing an NRC for
India and for Assam respectively. In a series of orders thereafter, the Supreme Court
issued directions to ensure that the NRC would be updated in Assam in order to detect
and deport illegal migrants in the state. In the court-monitored NRC exercise in Assam,
19,06,657 people were excluded from the list of citizens while 3.11 crore made it to the
list. It was against this backdrop that the Citizenship (Amendment) Act, 2019 (CAA) was
enacted. The CAA gives a path to citizenship to the subject minority communities by
enabling them to apply for citizenship by registration or naturalization, except those in
the tribal areas of Assam, Meghalaya, Mizoram or Tripura.18
In its present form, a persuasive argument can be made that the CAA is
unconstitutional, for several reasons:

15
(2015) 3 SCC 1
16
Section 2(a).

17
Section 5, Passport (Entry into India) Act, 1920.
18
Section 6B(4), Citizenship Act, 1955, inserted by Section 3, Citizenship (Amendment) Act, 2019
 (i) Other religious communities: The CAA only applies in favor of Hindu, Sikh,
Buddhist, Jain, Parsi and Christian immigrants, but not immigrants from other
religious communities. Jews, Muslim minorities like Shias or Ahmadiyas,
even atheists or agnostics, may have been persecuted, on grounds of religion,
in Afghanistan, Pakistan or Bangladesh. Yet, the CAA turns a blind eye
towards them. In covering only some religious communities and not others,
the CAA violates the principle of secularism which is a part of constitutional
morality.19 The fact that Muslim immigrants in India might not vote in favor
of the Hindutva policies of the regime presently in power at the center in India
renders the CAA even more suspect.

(ii) Other countries: It is not only “illegal migrants” from Afghanistan,

Bangladesh or Pakistan who may have faced religious persecution in their
countries. The CAA ignores religious asylum seekers from other countries,
e.g., Rohingyas from Myanmar. These may be neighboring countries like
Nepal, Bhutan or Sri Lanka, or countries that are not India’s neighbors but in
which members of the specified religious groups might still face persecution.

(iii) Cut-off date: Only those who entered India before 31 December 2014 have a
right to seek citizenship in India under the CAA. Those who entered India
thereafter have no such right, even though they may have faced religious
persecution in the subject countries before or after that date. This undermines
the ostensibly humanitarian aim of the CAA.
To be sure, however, bright-line rules generally do tend to be
arbitrary. A state may, for instance, draw an arbitrary line to confer certain
rights on its people – e.g., the right to drive and vote at the age of 18, the right
to marry at the age of 18 or 21, or the right to drink at the age of 25. What
makes a person of the age of 17 years and 11 months any less qualified to vote
in a general election than a person who is 18 years and 1 day old, one might
ask. However, despite the arbitrariness of this kind of line-drawing, the law
tolerates such rules because it is imperative that a line has to be drawn
somewhere. There must be a uniform age, for instance, when a state will allow

19
State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501
its citizens to vote, an age at which the state must presume that its citizens will
have sufficient maturity to cast their vote wisely. The rationale for bright-line
rules is that public policy necessitates that a line be drawn somewhere and
therefore the arbitrariness of the place where the line is drawn cannot really be
remedied.
However, the problem with the CAA is that the temporal line which
it has drawn interferes with the ostensible purpose for which the statute was
enacted. The aim of the CAA is to provide shelter and refuge to non-Muslim
religious minorities who have suffered religious persecution or feared
religious persecution in certain defined countries in India’s neighborhood.
 If that is so, why should it matter whether such a person entered India before or after 31
December 2014? The answer may be that the central government wishes to limit the influx of
asylum seekers into India and does not wish to keep India’s doors permanently open to those
who suffer religious persecution abroad. If so, this cuts against the ostensibly humanitarian aims
of the CAA.

(iv) Non-religious persecution: The CAA ignores “illegal migrants” who entered India
because they faced non-religious persecution – e.g., persecution based on sexual
orientation or political views, or race (such as Sri Lankan Tamils).20

(v) Relaxed Residence Requirement: The CAA relaxes the residence requirement in
India for citizenship by naturalization for the subject religious minorities. A person
who applies for citizenship by naturalization generally has to be resident in India
for a twelve-month period prior to the date of his application. Additionally, he has
to be resident in India for eleven years out of the fourteen years prior to the said
twelve-month period. However, the CAA reduces the eleven-year residence
requirement to five years..21 In other words, while others who apply for citizenship
by naturalization (including, say, Hindus fleeing religious persecution from
Lebanon) have to reside in India for eleven of the fourteen years prior to the
twelve month period preceding the date of application, the groups covered by the
CAA have to be resident in India for only five of the fourteen years preceding the
said date.
India is not a signatory to the 1951 UN Convention Relating to the Status of Refugees and
the 1967 Protocol Relating to the Status of Refugees. However, these instruments require
contracting states to provide refugee status to those who have a “well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social group
or political opinion” and not merely on grounds of religious persecution. 22 Contracting states
have to apply these instruments “without discrimination as to race, religion or country of

20
, McDonald-Norman argues that it will be difficult to determine whether a person from Afghanistan, Pakistan or
Bangladesh does, in fact, belong to the defined religious minority communities that are within the ambit of the
CAA.
21
Paragraphs (c)-(d), Third Schedule, Citizenship Act, 1955.
22
Article 1, 1951 Convention

10
 origin”.23 The CAA would fall foul of these instruments had India been a signatory to them.
The right to equality under the Indian constitution is not reserved for citizens alone. True,
discrimination against returning Muslim immigrants from Pakistan was a hidden premise
prevalent at the founding of the Indian republic. However, those times were different.
Muslim immigrants were then prevented from coming here because of partition-era
housing shortages and to prevent communal rioting in a charged environment. Those
conditions do not exist today. Further, while the discrimination against returning Muslim
immigrants between 1948-50 was embedded in the Constitution itself, the discrimination
inherent in the CAA has no constitutional basis. While original Constitutional provisions,
like the citizenship clauses of the Constitution, cannot be declared discriminatory or
unconstitutional, the CAA certainly can be.

(b) Classification Need Not Be Scientifically Perfect:

In several cases, the Supreme Court has often invoked Chief Justice Patanjali Sastri’s words
that Article 14 of the Constitution does not require that the classification brought about by
legislation be “scientifically perfect or logically complete”. 24 Supporters of the CAA may use
this doctrine to justify the statute. In that case, Chief Justice Sastri held that Article 14 does not
“mean that all laws must be general in character and universal in application” or deprive the
state of its “power of distinguishing and classifying persons or things for the purposes of
legislation.”25 What was required in such cases, he wrote, was that the classification must be
“based on an intelligible principle having a reasonable relation to the object which the
legislature seeks to attain.” on balance, the case against the CAA is compelling. True, the CAA
is under-inclusive in that it leaves out, as we have seen above: (i) other religious minority
communities in Pakistan, Bangladesh and Afghanistan; (ii) other countries, neighboring and
otherwise; (iii) those persecuted on grounds other than religion; and (iv) those persecuted after
31 December 2014. True, there is a presumption in favor of the CAA’s constitutional validity
and the court will presume that Parliament based its distinctions on degrees of harm – e.g., it
will be presumed that Hindus from Pakistan are more in need of asylum than, say, Jews or
Ahmadiyas from Pakistan. It is also true that courts will try and adopt a “practical” approach
and ignore the fact that the CAA is not “scientifically perfect or logically complete”.26
23
Article 3, 1951 Convention
24
Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404
25
Ibid, paragraph 7 (SCC Online version).
26
AIR 1953 SC 404 (SCC Online version, paragraph 8).

11
 However, there is no intelligible reason why the CAA has excluded the categories
mentioned above, and the exclusion of those categories bears no rational nexus with the object
sought to be achieved by the statute. The Statement of Objects and Reasons of the CAA
declares that its object is to protect those who suffered “persecution on grounds of religion in
those countries”27. The exclusion of persecuted Jews, atheists, agnostics, Shias, and
Ahmadiyas from those countries bears no rational nexus with this object. The exclusion of
countries like Nepal, Bhutan, Myanmar and Sri Lanka is also baffling. The mere fact that
Islam is not the state religion in these countries does not mean that its citizens necessarily
enjoy the right to free exercise of religion. Likewise, countries in which religions are
“established”, by law, can still be secular. The cut-off date is palpably arbitrary because it
leaves out those who might suffer religious persecution after that date even in India’s
neighboring Islamic countries. The relaxation of the residence requirement for naturalization is
also palpably arbitrary. After all, why should a Parsi fleeing religious persecution from
Afghanistan have an easier route to naturalization as against a Parsi fleeing religious
persecution in, say, Iran? For these reasons, the CAA lacks an adequate determining principle
and ought to be struck down or read down.

CONCLUSION

Now let us revisit the chief accusation that has been leveled against the BJP government for
enacting the CAA. The argument goes that the NRC will exclude a large number of Indian
citizens from its ambit, which is what has happened in the NRC exercise in Assam. The
evidentiary burden will then be on Indian citizens to prove their citizenship. A large number of
Indian citizens of various religious persuasions will be unable to do so, since it is difficult to
provide documentary evidence for one’s place of birth and the place of birth of one’s parents.
However, because of the CAA, non-Muslims will be conferred citizenship and Muslims will
be the only ones excluded from Indian citizenship. The sum and substance of the anti-CAA
argument therefore is that the CAA and NRC are essentially intended to strip Indian Muslims
of their citizenship.28

27
See, Statement of Objects and Reasons, Citizenship (Amendment) Act, 2019.
28 175
The Economic and Political Weekly, in its editorial, for instance, argued that the CAA “reflects the ideological
zeal to target minority groups in India.” By enacting the CAA, it argued, the government has communicated to the

12
 This argument is flawed. True, if a National Register of Citizens is operationalized for
the rest of India as it was in Assam, it is possible that a large number of citizens will be left out
of its ambit. True, this will mean that Indian citizens will have to then prove their citizenship,
which many will be unable to do because of a lack of documentation to show their birthplace
and the birthplace of their parents. However, it is a fallacy to think that the CAA will then
automatically confer citizenship on all non- Muslims who have been left out of the NRC. The
CAA confers citizenship on Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the
subject countries, who were “compelled to seek shelter in India due to religious persecution or
fear of religious persecution” and who entered India before 31 December 2014. Non-Muslims
who have been left out of the NRC will not be presumed to fall within the ambit of the CAA.
According to the evidentiary rules of Indian citizenship law, non-Muslims who seek refuge
under the CAA will have to prove that they migrated to India from Pakistan, Bangladesh or
Afghanistan before 31 December 2014 and that they did so in order to flee “religious
persecution or fear of religious persecution”. Despite the presumption of nationality under
Section 8 of the Foreigners Act, 1946, it will be no simple task to prove one’s presence in
India for fear of “religious persecution or fear of religious persecution” in the subject
countries. The CAA/NRC regime is therefore as dangerous to India’s non- Muslim citizens as
it is to India’s Muslim citizens.
While the immediate aim of enacting the CAA may have been to prevent non- Muslim
migrants from Pakistan, Afghanistan and Bangladesh from being excluded from Indian
citizenship as a result of the NRC in Assam, the CAA will not automatically confer citizenship
on resident Indian non-Muslims excluded in an all-India NRC.

The CAA’s preference for non-Muslim immigrants is vaguely reminiscent of India’s

partition-era aversion to returning Muslim refugees from Pakistan, though the conditions in
India then were certainly very different from what they are now. However, that does not mean
that it is constitutionally valid. As we have seen, it discriminates against other religious
minority groups in Pakistan, Bangladesh and Afghanistan. It is too myopic in its recognition of
religious persecution as being the only ground for asylum. The cut-off date of 31 December
2014 is arbitrary (though bright line rules tend to be arbitrary). Why Afghanistan has been

communities included in it that those excluded by the CAA are “secondary citizens”. “Interrogating the Citizenship
(Amendment) Bill”, Economic and Political Weekly, 14 December 2019

13
 chosen, though it was not a part of colonial India, while other neighboring countries like Sri
Lanka, Bhutan, Nepal and Myanmar have been excluded, is also an open question. The fact
that Pakistan, Bangladesh and Afghanistan are all “theocracies” is no answer. Countries with
an “established” religion, like the U.K., can still be secular. Yet, the CAA is only a part of the
problem with Indian citizenship law. The reverse burden of proof which has been in place
since 1939 needs to be reevaluated in the Indian context. The 2004 amendment to the
Citizenship Act, which did away with citizenship by birth, needs to be reconsidered. Dreamers,
who arrived in India as minors with their parents, need a safe harbor. The procedural problems
with the foreigners tribunals need to be reexamined.

BIBLIOGRAPHY

1) CONSTITUTION OF INDIA, MP JAIN

2) STATUTES

The Passport Act, 1920

The Constitution of India,1950

The Citizenship of India Act,1955

The Assam Accord, 1985

The Citizenship Act amendment,2003

UN CONVETION,1951

3) ARTICLES, EDITORIALS

https://www.theparliamentmagazine.eu/news/article/indian-caa-law-is-a-positive-step

https://indianexpress.com/article/opinion/columns/citizenship-amendment-act-modi-govt-anti-
caa-nrc-protests-india-6261283/

14
https://www.theindiaforum.in/article/why-caa-violates-constitution

https://www.indiatoday.in/india-today-insight/story/everything-you-wanted-to-know-about-the-
caa-and-nrc-1630771-2019-12-23

https://swarajyamag.com/books/book-explains-the-taqlid-mindset-the-muslim-opposition-to-caa-
article-370

The Economic and Political Weekly, “Interrogating the Citizenship (Amendment) Bill”,
Economic and Political Weekly, 14 December 2019

15