Caa Final Review

1
CHAPTER 01
“CRITICAL ANALYSIS OF THE CITIZENSHIP (AMENDMENT)

ACT, 2019”
1.1 INTRODUCTION:
The Citizenship (Amendment) Act, 2019 (hereinafter CAA) was passed by the
Parliament of India on 11 December 2019. It amended the Citizenship Act, 1955 by
providing a pathway to Indian citizenship for refugees from Afghanistan, Bangladesh and
Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians, and arrived in
India before the end of December 2014. The law does not grant such eligibility to
Muslims from those countries, all of which are Muslim-majority countries. The Act was
the first time that religion had been overtly used as a criterion for citizenship under Indian
law.
It is a historical fact that trans-border migration of population has been happening

continuously between the territories of India and the areas presently comprised in
Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging
to various faiths were staying in the said areas of Pakistan and Bangladesh when India
was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh
provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh,
Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of
religion in those countries. Some of them also have fears about such persecution in their
day-to-day life where right to practice, profess and propagate their religion has been
obstructed and restricted. Many such persons have fled to India to seek shelter and
continued to stay in India even if their travel documents have expired or they have
incomplete or no documents.1
The persecuted religious minorities who fled from Muslim majority countries like
Pakistan, Bangladesh and Afghanistan were promised by the BJP government in previous
election manifestos to offer Indian citizenship. Under the 2019 amendment, migrants who
had entered India by 31 December 2014, and had suffered "religious persecution or fear
1
The Citizenship (Amendment) Act, 2019, Statement of objects and reasons.
2
of religious persecution" in their country of origin, were made eligible for citizenship.
The amendment also relaxed the residence requirement for naturalisation of these
migrants from twelve years to six. According to Intelligence Bureau records, there will be
just over 31,331 immediate beneficiaries of the bill.2
According to the Indian Intelligence Bureau figures given to the Joint

Parliamentary Committee, 31,313 people were granted long-term visas using the criteria
mentioned in the Act. They included 25,447 Hindus, 5,807 Sikhs, 55 Christians, 2
Buddhists and 2 Parsis. They were expected to be the immediate beneficiaries of the Act. 3
These will be the immediate beneficiaries when the Citizenship Amendment Act 2019 is
implemented.
In India, citizenship is regulated by the Citizenship Act, 1955. The Act specifies
that citizenship may be acquired in India through five methods – by birth in India, by
descent, through registration, by naturalisation (extended residence in India), and by
incorporation of territory into India.4
In Pakistan, there is the acceptability of religious apartheid as per the Islamic

Republic of Pakistan. Nobody raises questions on the disgrace or the differential
treatment that Hindus living in Pakistan have to tolerate, and also, they are considered as
unequal citizens over there. The Constitution of Pakistan has Islam as their State religion
hence there is a possibility that the Government of Pakistan is favourable only for Islam
followers. Over the years, there has been a heavenward surge in religious fanaticism &
extremism among Pakistanis. They are torturing several minority groups existing in
Pakistan like Sikhs, Hindus, Shia Muslims, Christians, and Ahmadiyas.
The minorities are disappearing fast in these three sub-continental Muslim-majority

Republics Pakistan, Afghanistan and Bangladesh. According to the Pakistani scholar
2
Joint Parliamentary Committee, 16th Lok Sabha , Report of the joint committee on the Citizenship
(Amendment) Bill, 2016, http://164.100.47.193/lsscommittee/Joint%20Committee%20on%20Bill%20to
%20amend%20the%20Citizenship%20Act,
%201955/16_Joint_Committee_on_Bill_to_amend_the_Citizenship_Act_1955_1.pdf.
3
Rahul Tripathi, Citizenship Amendment Act 2019: What it holds for India, THE ECONOMIC TIMES,
(23/12/2019) https://economictimes.indiatimes.com/news/politics-and-nation/citizenship-amendment-bill-
decoded-what-itholdsforindia/articleshow/72466056.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst., last seen on 15/2/2021.
4
The Citizenship Act, 1955, S. 2(1) (b), No.23, Acts of Parliament, 1955.
3
Farahnaz Ispahani, around 1947, minorities comprised 23% of the West & East Pakistan
population. This has now fallen to 3% in Pakistan (former West Pakistan), and a little
over 9% in Bangladesh (former East Pakistan). The greatest fall occurred in 1971, when 3
million Bangladeshis, mostly Hindus, were massacred by the Pakistani army. Extrapolate
the reduced percentage of minorities to the present population, and there are over 60
million missing Hindus, Christians, Sikhs and other minorities in Pakistan, Bangladesh,
and Afghanistan.5
The CAA attempts to protect six besieged minorities from extinction. It does not
prevent individual refugees from the Muslim communities of Pakistan, Bangladesh and
Afghanistan from continuing to come to India through the normal process, which many
Afghan Muslims have already done. And it certainly does not affect any Indian citizen,
Muslims included.
The people of Assam have vigorously protested against the enactment of CAA
because it is going against the Assam Accord, 1985. On the other hand the Indigenous
People of Assam fear that the law would make them a minority in their homelands.
According to them, with ill intention, the government of India through CAA wants to
wipe out their histories, cultures, languages, and identities. Therefore, millions of people
took to the streets against the Bill.6
The present study is undertaken to clear few of the apprehensions and

misconceptions revolving around the CAA. The researcher undertook the study of the
CAA to analyse the enactment and to look into the intention, objects and reasons of the
parliament in passing of the CAA.
1.2 THE STATEMENT OF PROBLEM:
5
Amish, Time to understand the CAA, with reason, Hindustan Times, (29/12/2019),
https://www.hindustantimes.com/analysis/time-to-understand-the-caa-with-reason/story-
amSa0PNuZHqAT29xELuqgJ.html, last seen on 12/5/2021.
6
Dev Kumar Sunuwar, Citizenship Amendment Bill Negatively Impacts Indigenous Peoples of Northeast
India, Cultural Survival,(Jan.2,2009) https://www.culturalsurvival.org/news/citizenship-amendment-bill-
negatively-impacts-indigenous-peoples-northeast-india.last seen on 15/2/2021.
4
The CAA was passed by the Parliament of India on 11 December 2019. It amended
the Citizenship Act, 1955 by providing a pathway to Indian citizenship for minorities of
Afghanistan, Bangladesh and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis or
Christians and arrived in India before the end of December 2014. The tribals of North-
eastern states are apprehending that this enactment may snatch away their cultural
autonomy and they would be treated as minorities in their own land. Furthermore the
Muslims of India are apprehended that this amended law along with enactment of NRC
can serve as a backdoor entry for the government to snatch away their citizenship and
send them to detention camps. Therefore it requires an analysis of the Citizenship
Amendment Act, 2019 and effects of its implementation on the illegal immigrants as well
as the citizens of India.
1.3 OBJECTIVE OF THE STUDY:
1. The primary objective of the study is to check into the constitutional

compliance of the CAA enacted to safeguard the immigrants belonging to
Hindu, Sikh, Parsis and Christian minorities from Pakistan, Afghanistan
and Bangladesh.
2. The second object of the study is to analyse whether the CAA affects the
cultural autonomy of indigenous people of Northeast India.
3. The third objective is to study whether the Muslim minorities in India will
be affected by implementation of the CAA.
1.4 RESEARCH QUESTIONS:
1. Whether the CAA violates Article 14 of the Constitution by failing the

reasonable classification test?
2. Whether the CAA violates the right to live with dignity guaranteed by
Article 21 of the Constitution?
3. Whether the implementation of CAA makes the Assam Accord, 1985
ineffective?
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1.5 METHODOLOGY:
The study is completely doctrinal and involves primarily the content analysis of
legislation and judicial decisions. It employs historical method, analytical method and
descriptive methods. For critical appraisal of the enactment secondary sources such as
scholarly books, articles published in journals are used. The standard form of citations i.e
bluebook citation is used.
1.6 SOURCES OF INFORMATION:
The primary sources used in research are the Constitution of India, 1950,
legislations passed by the parliament, Constituent Assembly Debates, judgments, UN
Conventions, etc,. Whereas Books, Commentaries, Journals, Articles, Newspapers,
Census, surveys etc form secondary source of information.
1.7 SIGNIFICANCE OF THE STUDY:
There is a lot of hue and cry over the CAA which the parliament passed with the
intention to provide citizenship to immigrants who have fled from Pakistan, Afghanistan
and Bangladesh due to suffering of religious persecution or fear from it. Also since the
passing of CAA there is a lot of unrest in the regions of North Eastern States as the tribals
are apprehending that this enactment may snatch away their cultural autonomy and they
would be treated as minorities in their own land. The study may throw some light on the
method of implementation of the CAA and also the overall impact of the new law.
1.8 HYPOTHESIS:
The following hypotheses are formulated to be verified through the study:
1. The CAA is in conformity with the Article 14 and 21 of the Constitution of India,
1950.
2. The implementation of the CAA dilutes the Assam Accord, 1985.

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1.9 SCHEME OF THE STUDY:
1.9.1 CHAPTER 1: INTRODUCTION
This chapter is concerned with explanation of the statement of problem, objective

of the study, hypothesis, its importance and research methodology adopted followed by
limitation of the study along with scheme of chapters for this study.
1.9.2 CHAPTER 2: HISTORICAL BACKGROUND ON CITIZENSHIP LAWS IN

INDIA AND INTERNATIONAL MIGRATION LAW.
This chapter deals with the laws which were in existence during the British regime
in India and also the laws governing all the aspects citizenship. Further the Constituent
Assembly Debates on Part II of the Constitution of India. Further it deals with the effect
of international law on migration.
1.9.3 CHAPTER 3: THE CITIZENSHIP ACT, 1955 AND THE AMENDMENTS

TO THE ACT.
This chapter deals with important sections of The Citizenship Act,1955. Various
modes of acquisition of citizenship in India and also the modes by which a person can
lose his/her citizenship of India. The present chapter further deals with the various
amendments carried out to the Citizenship Act, 1955 in 1986, 1992, 2003, 2005, 2015 &
2019.
1.9.4 CHAPTER 4: CRITICAL ANALYSIS OF THE CAAAND TEST OF

CONSTITUTIONALITY.
This chapter elucidates the provisions of the CAAsection by section and clause by
clause analysis. This chapter deals with the constitutionality of Citizenship (Amendment)
Act 2019. Also whether CAAsatisfies the test under Article 14 i.e Firstly the
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classification must be founded on the intelligible differentia which distinguishes persons

or thing that are grouped together from others left out of the group. Secondly the
differentia must have a rational relation to the object sought to be achieved by the act.
Further to test whether the CAAviolates the right to live with dignity guaranteed by
Article 21 of the Constitution.
1.9.5 CHAPTER 5: THE CITIZENSHIP (AMENDMEMENT) ACT, 2019 AND

ASSAM ACCORD, 1985
The present chapter deals with the history of illegal immigrant issues in Assam, and
the struggle of Assam student association in safeguarding their cultural autonomy. The
Assam Accord, 1985 and the various factors which led to the signing of this
Memorandum of Settlement between the leaders of Assam Movement and the former
Prime Minister Mr. Rajiv Gandhi is dealt herewith. Further the inconsistencies amongst
the two i.e., the Assam Accord, 1985 and CAA are brought out by the analysis of
available data at hand. The chapter further deals with implementation of National
Register of Citizens (NRC) in the State of Assam and effect of its implementation.
1.9.6 CHAPTER 6: CONCLUSION & SUGGESTIONS
In this chapter, on the basis of study, cogent conclusions are drawn. It is shown
through critical analysis that the hypotheses are proved. The Limitation of the present
study is outlined and future scope of study in the present area is indicated.
1.10 LIMITATIONS OF THE STUDY:
1. The study is purely based on doctrinal research hence it is limited to the

materials available to the researcher.
2. The rules for the implementation of the CAA have not been framed by the
subordinate legislation committees yet hence its overall impact is
unknown.
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3. The Constitutionality of CAA is challenged in the Supreme Court and the

decision is pending.
CHAPTER: 02
HISTORICAL BACKGROUND ON CITIZENSHIP LAW IN INDIA

AND INTERNATIONAL LAW AND MIGRATION
9
2.1 INTRODUCTION
India was under colonial rule of British for over a century and it has left a major
influence in framing of the Constitution of India. It should not come as a surprise then
that the current legal regime of citizenship in India was unable to escape the trappings of
its colonial history7.In order to gain a better understanding of the current regime and to
appreciate the evolution of citizenship law; its historical context needs to be examined
closely.8 The evolution of citizenship laws in India can be better understood by studying
the citizenship laws during pre-independence period and post independence period.
2.2 PRE-INDEPENDENCE PERIOD:
There is some debate over the exact period across which India was a colony. The
British presence in India was established through the East India Company, which had
been created through a charter of the English Parliament in 1600 as a mercantile body
that was to possess a trading monopoly in the East. India was formally governed by the
East India Company from 1757-1858. Especially in the nineteenth century, the Company
had to share sovereign power with the British Crown which took over formal power in
1858 to become the direct legal authority over British India.9
From 1858-1947, India was a formal colony of the British government and was
ruled directly by it. The East India Company was initially granted certain limited powers
of a legislative character, including the power to impose penalties to enable it to perform
its commercial functions. As the Company’s operations expanded, it demanded and
obtained greater legislative, executive and ultimately, judicial powers. Over time, the
7
Ashesh Ashna, & Thiruvengadam Arun, Report on citizenship law : India, [Global Governance
Programme], GLOBALCIT, Country Reports, 2017/12 Retrieved from Cadmus, European University
Institute Research Repository, http://hdl.handle.net/1814/47124 , last seen on 15/5/2021.
8
Id.
9
Ramkrishna Mukherji, The Rise and Fall of the East India Company: A Sociological Appraisal (Monthly
Review Press: New York, 1974); Cyril Henry Philips, The East India Company, 1784-1834 (Manchester
University Press: Manchester, 1961); and Tirthankar Roy, The East India Company: The World’s Most
Powerful Corporation (Penguin Books: 2012). Cited in Ashesh Ashna, & Thiruvengadam Arun, Report on
citizenship law : India, [Global Governance Programme], GLOBALCIT, Country Reports, 2017/12
Retrieved from Cadmus, European University Institute Research Repository, at:
http://hdl.handle.net/1814/47124 , last seen on 15/5/2021.
10
Company officials obtained powers similar to legislators for India but continued to deny
the responsibilities that came with exercising effective state authority in India.10
For nearly a century before its formal control over India ended, from about the
middle of the eighteenth century till the middle of the nineteenth century the Company
conducted itself as a proxy for the British government, and the foundation of the colonial
legal order was established in India during this period. So, while technically speaking the
British government directly ruled India only between 1858-1957 (spanning nearly 90
years), scholars and historians would count the overall period of colonial rule in India as
extending to at least a century before that date. This extends the period of colonial rule in
India to nearly two full centuries.11
There were two phases during colonial rule that are of particular significance in the
context of the trajectory followed by citizenship laws. The first phase was characterized
by a mode of administration known as ‘double government’ where power was shared by
both the East India Company and the British monarch. Although no comprehensive
citizenship statute existed at this point, the relevant legal instruments in this period were
the Regulating Act of 1773 and the Charter of 1774. Both instruments were applicable to
British subjects. However, neither of these defined the term ‘subject’, meaning it was
unclear whether these instruments were referencing only European British subjects or had
an ambit expansive enough to include the inhabitants of the territories the British had
acquired from the Mughals12. Consequently, there was ambiguity regarding the status of
native Indians and the nature of their rights and obligations.
It is important to obtain a sense of the territorial sub units within South Asia under
imperial rule. The regions, which had been ‘Presidencies’ within Company rule, became
‘Provinces’ under the direct rule of the British Empire in India. From 1858 onwards,
India was divided into two broad political units: the much larger British India (which
10
Id.
11
Saurabh Chandra, The myth of 200 years of British rule in India, Indian National Interest, Takshashila
Institution, (Nov15,2015), https://nationalinterest.in/the-myth-of-200-years-of-british-rule-in-india-
db74e183f5fb, last seen on 20/6/2021.
12
Sinha AN, Law of Citizenship and Aliens in India, 1962. Cited in Ashesh Ashna, & Thiruvengadam
Arun, Report on citizenship law : India, [Global Governance Programme], GLOBALCIT, Country Reports,
2017/12 Retrieved from Cadmus, European University Institute Research Repository, at:
http://hdl.handle.net/1814/47124 , last seen on 15/5/2021.
11
accounted for 54% of the territory and 70% of the population; was administered directly
by the British government; and was further divided into Provinces) and the Princely
States (which consisted of 565 separate and geographically widely disseminated units that
were governed by local princes, kings and feudal lords who were allowed limited internal
autonomy in exchange for accepting British suzerainty). At the time of independence in
1947, British India consisted of 17 Provinces, while the Princely States numbered 565.
The latter were not nation-states as we understand them, but sought to mimic some of the
characteristics of a nation, while strongly retaining the role of a hereditary monarch. For
the purposes of external affairs the formal protection of British subject hood was granted
to all those inhabiting the Indian Territory, internally there was a distinction between the
residents of the Indian princely states and the subjects of British India. The term ‘British
subject’, as can be gathered from these legal instruments and the scholarship surrounding
them, was used in a restrictive, formalistic sense in the context of native Indians 13. The
denizens of the Princely States were not entitled to the status of British subjects.
The coterminous administration of the Company and the Crown ended in 1858
with the Crown assuming sovereignty as per the provisions of the Government of India
Act, 1858. This marked the beginning of the second phase. Towards the end of this phase,
specifically in the year 1914, there was a significant change in the conception of British
Nationality. The passage of the British Nationality and Status of Aliens Act, 1914
signified the replacement of the common law notion of nationality with a codified
conception of the same and as such was the first citizenship law the British era
witnessed14. The Act defined the term British subject to include two classes of people –
‘natural born British subjects’ and persons who had obtained certificates of naturalization
from colonial authorities. It should be remembered that persons of Indian origin had
travelled to several parts of the world, including Malaya, Myanmar, Fiji and Guyana. At
least some of them hoped to return to India after independence.15
Though the text of the statute reflected the principle of jus soli16 in keeping with the
secularizing influence of modernity, the conception of ‘subject’ was undoubtedly
13
Id.
14
A.N. SINHA, LAW OF CITIZENSHIP AND ALIENS IN INDIA, 76 (1 st ed. Asia Publishing House
1962).
15
Supra note 7.
12
informed by race. This was evidenced in the differentiation in privileges and rights of the
European British subjects from those of native Indians. The implication of the
codification of racial discrimination was that while a native Indian was formally
recognized as a British subject, a corresponding substantive recognition was lacking. A
native Indian thus was relegated to the rank of a second class citizen.17
2.3 POST INDEPENDENCE PERIOD:
In 1947 India emerged as an independent nation after a concerted and sustained

effort on the part of Indian nationalists to end the dominion of the native Indians by the
colonizer. The Indian Independence Act of 1947 repealed the Government of India Act,
1935 thereby nullifying the ban imposed on the Indian legislature in respect of enacting
laws impacting British nationality and sovereignty.18
The emergence of India as a sovereign entity meant a change in the political

identity of its population from colonial subjects to that of citizens. While India’s political
integration was critical to the creation of the category of citizens, it has to be placed in the
broader context of the disintegration of British India giving rise to another nation state –
Pakistan. This disintegration (partition) had a significant impact on the conceptualizing of
Indian citizenship and the framing of Indian citizenship legislation.
Partition caused a massive displacement of people on both sides of the border, and
was accompanied by large-scale violence and homelessness19. From the time of
independence in 1947 till the adoption of the Constitution of India in November 1949 by
the Constituent Assembly, there existed a lacuna as far as Indian citizenship law was
concerned20. This in effect meant that there was no way to ascertain who was and was not
an Indian citizen at a time when there was both a humanitarian crisis of epic proportions
as well as a crisis of national identity. It was to mitigate this uncertainty occasioned by
16
Jus soli: a rule that the citizenship of a child is determined by the place of its birth, “ Jus soli.” Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/jus%20soli. Last visited on 20/6/2021.
17
Supra note 7.
18
Wolpert,S.A.. British raj. Encyclopedia Britannica. (8Sept 2020),
https://www.britannica.com/event/British-raj last visited on 20/6/2021.
19
JAYAL NIRAJA GOPAL, CITIZENSHIP AND ITS DISCONTENTS: AN INDIAN HISTORY, 56
(Cambridge & London: Harvard University Press and New Delhi, 2013).
20
SINHA, supra note 14, at 77.
13
the ingress of people from the other side of the border that the Indian government put in
place the Influx from Pakistan (Control) Ordinance, 1948. Furthermore the framers of the
Indian constitution had to look beyond the Indian subcontinent and consider the claims of
citizenship of large numbers of Indian populations that were living in Burma, Malaya,
Guyana, Fiji and Ceylon.21
In light of the heightened identity politics stemming from Partition addressing

questions of citizenship - which had been initially overlooked by the Constituent
Assembly became unavoidable. At this juncture the framers were more concerned with
citizenship being a formal requirement that acts as a proof of identity than citizenship as a
substantive concept. Consequently, the relevant provisions of the Constitution focused
more on the formal aspects of citizenship and only concerned themselves with
determining citizenship at the time of commencement of the Constitution 22. The framers
recognized that these provisions were a stop-gap measure and accordingly provided the
Parliament with plenary powers to enact citizenship laws of a more perennial character,
subsequent to the commencement of the Constitution23.
The Constitution of India came into effect on 26 January 1950. 24 It is important to

note however that the provisions pertaining to citizenship came into force on the day the
Constitution was adopted, i.e. 29 November 1949. These provisions were applicable to all
of India with the exception of the State of Jammu and Kashmir. The Constitution
provided for a singular mode of citizenship – national citizenship 25. There was no concept
of a separate state based citizenship existing alongside the national citizenship.
2.4 CONSTITUENT ASSEMBLY DEBATES:
21
supra note 18.
22
SINHA, supra note 14, at 78.
23
JAYAL NIRAJA GOPAL, THE OXFORD HANDBOOK OF THE INDIAN CONSTITUION, Edited by
Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta, Print Publication Date: Mar 2016, International
LawOnline Publication Date: Feb 2017 DOI: 10.1093/law/9780198704898.003.0010.
24
R.Krithika, Celebrate the supreme law, The Hindu, Jan 21, 2016,
https://www.thehindu.com/features/kids/Celebrate-the-supremelaw/article14011992.ece, last visited on
23/6/2021 12:07:40 PM.
25
KNOW INDIA: NATIONAL PORTAL OF INDIA, https://knowindia.gov.in/profile/citizenship.php last
visited 23/6/2021.
14
The term citizenship is not defined in the Constitution of India. Hence the study of
constituent assembly debates and the Part II of the Constitution will throw light on the
intention of the framers of the Constitution. Dr. Ambedkar drew the attention of the
House to two important limitations. The first was that this Draft dealt with the limited
question of citizenship on the day the Constitution comes into force. And the other point
was that all other matters, including those which are dealt with by the present Draft, are
left to be dealt with by Parliament as it considers fit. With these limitations in mind I
think the discussion of these two articles can be curtailed to a considerable extent and the
matter might be disposed of quickly.26
Draft Article 5 (Article 5) laid down basic principles of citizenship. The Assembly
discussed this Draft Article on 10th August 1949, 11th August 1949 and 12th August
1949. Some members sought to include a residuary provision for citizenship based on
religion. They argued that every Hindu or Sikh who is not a citizen of any other state,
irrespective of their residence should be entitled for Indian citizenship. In rebuttal, one
member strongly urged against hyphenating religion and citizenship. He argued that rules
must be informed by justice and equity and not on extraneous conditions. Another
member was keen on the draft article accommodating dual citizenship. He added that this
privilege must be extended to countries on the principle of reciprocity. P.S.Deshmukh
believed that this Draft Article made Indian citizenship cheap. In response, it was pointed
out that this Draft Article was stricter than the American law on citizenship. Few
members voluntarily withdrew their amendments, while other amendments which were
put to vote were negatived. The Constituent Assembly adopted Draft Article 5 as
introduced by the Drafting Committee on 12th August 1949.27
Draft Article 5A (Article 6) was debated on 10th August 1949, 11th August 1949
and 12th August 1949. This article laid down principles of citizenship with regards to
persons who migrated from Pakistan to India during partition. Jaspat Roy Kapoor
proposed to add ‘on account of Civil disturbance or the fear of such disturbances’ in the
first clause. It was argued that the inclusion of this phrase would articulate and make
explicit the real intention behind this provision which was to facilitate migration from
26
Constituent Assembly Debates Vol 9 No.116 para 3.
27
Constituent Assembly Debates Vol 9 No. 116.
15
Pakistan in the wake of civil disturbance or fear of it.28 Another member wanted to make
it compulsory to provide evidence to prove right by descent and intention to permanently
reside in India. He argued that Indian citizenship must be regarded as a matter of great
privilege, and not a cheap or easy affair. Alladi Krishnaswami Ayyar member of the
Drafting Committee reminded the Assembly that this Article sought to settle basic
principles of citizenship and did not aim to establish a ‘code of nationality law’ 29. One
member went on to say that compared to the Indian constitution, no other constitution
even made an attempt to comprehensively deal with various aspects of nationality law.
Towards the end of the debate, some members voluntarily withdrew their amendments,
while other amendments were rejected. The Assembly adopted Draft Article 5A on 12th
August 1949.
Draft Article 5AA (Article 7) was debated on 10th August 1949, 11th August 1949
and 12th August 1949. The Draft Article regulated citizenship claims of persons who
have migrated to Pakistan. Jaspat Roy Kapoor thought that this article was ‘obnoxious’
because once persons migrate from India to Pakistan they would have ‘transferred their
loyalty’ to another country. The permit system treats these persons favourably and makes
it easier to obtain Indian citizenship. Instead, it was argued that migrants from Pakistan
should be treated like other foreigners and they could acquire citizenship from
naturalization.30 However, others responded to this argument by pointing out that permits
would not be issued in a lackadaisical manner. Further, the members of the Drafting
Committee reminded the Assembly that the Indian government had promised
rehabilitation and resettlement measures for migrants from Pakistan and put in place a
permit system for citizenship claims. Going back on these words would be ‘invidious’
and cause ‘grossest injustice’.31 Bhopinder Singh Man argued that the property left
behind by migrants was treated as ‘evacuee property’ under the law. Upon a person’s
return and subsequent acquisition of Indian citizenship, how would their property claims
be settled? Alladi Krishnaswami Ayyar a member from the Drafting Committee clarified
28
29
30
Constituent Assembly Debates Vol 9 No.116 para 103
31
CONSTITUTION OF INDIA (CENTRE FOR LAW & POLICY RESEARCH)
https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-12#9.117.148 (last
visited 24/6/2021).
16
that there was no relationship between citizenship and property rights either in
international or domestic law. The Assembly adopted this article without any
amendments on 12 August 1949.
Draft Article 5B (Article 8) was debated on 10th August 1949, 11th August 1949
and 12th August 1949. It was not initially included in the Draft Constitution, 1948.
Instead, the Chairman of the Drafting Committee proposed the insertion of the following
as Draft Article 5B: 'Notwithstanding anything contained in article 5 and 5-A of this
Constitution, any person who or either of whose parents or many of whose grandparents
was born in India as defined in the Government of India Act, 1935 (as originally enacted)
and who is ordinarily residing in any territory outside India as so defined shall be deemed
to be a citizen of India if he has been registered as a citizen of India by the diplomatic or
consular representative of India in the country where he is for the time being residing on
an application made by him therefore to such diplomatic or consular representative,
whether before or after the commencement of this Constitution, in the form, prescribed
for the purpose buy the Government of the Dominion of India or the Government of
India.' It regulated citizenship rights of Indian origin persons residing outside India. A
member believed that the article provided unfair special treatment to Indians abroad who
are seeking Indian citizenship: as it allows for application and registration even after the
commencement of the Constitution. However, the previous article, which grants
citizenship to persons who have migrated from Pakistan, did not receive a similar
prospective application. The Assembly adopted the Article without amendments on 12
August 1949.32
Article 9 was debated on 10th August 1949, 11th August 1949 and 12th August
1949. This Article barred dual citizenship. It was not initially a separate Article, and
instead was debated as a proviso to Draft Article 5 (Article 5) of the Constitution. During
the revision stages, the Drafting Committee decided that that bar on dual citizenship must
be a general principle and not be restricted to conditions under Article 5. During the
Constituent Assembly debates, Prof. K. T. Shah argued in favour of dual citizenship. He
32
https://www.constitutionofindia.net/constitution_of_india/8/articles/Article%208,(last visited 23/6/2021).
17
noted that it should be limited to countries which extend the same to Indians. However,
the Assembly voted against this proposal without debate.33
Draft Article 5C (Article 10) was debated on 10th August 1949, 11th August 1949
and 12th August 1949. It was not initially part of the Draft Constitution, 1948. Instead,
the Chairman of the Drafting Committee proposed the insertion of the following as Draft
Article 5C: 'Every person who is a citizen of India under any of the foregoing provisions
of this Part shall subject to the provisions of any law that may be made by Parliament,
continue to be such citizen. Parliament to regulate the right of citizenship by law.' This
Draft Article clarified that people declared as citizens under the preceding citizenship
articles continued to be so subject to any law made by the Parliament. While there were
no substantive discussions around this Article, Mahboob Ali Baig Sahib Bahadur moved
a motion to delete this article as he believed that it was unnecessary and redundant, and
that Draft Article 6 (Article 11) was sufficient for these purposes.34 The Chairman of the
Drafting Committee reiterated that the Articles on citizenship were temporary in nature; it
was to be left to the future Parliament to enact a comprehensive citizenship code. The
Assembly adopted this article without any amendments on 12 August 1949.
Draft Article 6 (Article 11) was debated on 10th August 1949, 11th August 1949
and 12th August 1949. It gave Parliament the power to make citizenship related laws.
The Chairman of the Drafting Committee introduced this Draft Article. He stated that the
Assembly was not tasked with making a permanent citizenship law; instead it aimed to
settle key principles that would govern citizenship at the time of commencement of the
Constitution. The future Parliament, he continued, had the prerogative to make a
comprehensive citizenship code. He further clarified that the Parliament was not bound
by the preceding articles, and could further restrict or regulate citizenship. One member
was not convinced. He did not want the Parliament’s power to legislate on citizenship to
be unfettered. He proposed to add a qualifier: Parliament should not be allowed to grant
equal citizenship rights to nationals of a foreign country which denies equal treatment to
33
Constituent Assembly Debates vol 9 no.116 para 118
34
Constituent Assembly Debates vol 9 no.117 para 9
18
Indians. The Assembly did not accept any amendments and adopted Draft Article 6 as
introduced by the Drafting Committee on 12th August 1949.35
2.5 PART II OF THE CONSTITUTION:
The Part II of the Constitution specifically Articles 5-11 provides the framework
for citizenship at the time of commencement of the Constitution. 36 The relevant
provisions detail the modes of acquiring citizenship – birth, domicile and descent,
circumstances that bars a person from acquiring Indian citizenship, plenary powers of the
Parliament, and the status of those displaced on account of the Partition.
Article 5-8 give tentative provisions for acquisition of Indian citizenship; were
intended to deal with citizenship at the commencement of the Constitution 37 and for the
convenience of the initial elections and for the exercise of civil rights till Parliament
could legislates on the subject [Art. 11]. The power of the Parliament to legislate as
regards Citizenship is plenary notwithstanding the Constitutional provisions in Article 5
to 8. Hence any person who is a citizen of India at the commencement of the Constitution
according to any of the provisions of Articles 5-8, may lose his citizenship by reason of
subsequent Parliamentary legislation. But so long as Parliament does not modify the
provisions of the present Articles such person shall continue to be citizen of India.38
Article 5 deals with the issue of ‘citizenship at the commencement of the

Constitution. It stipulates a two-fold requirement for conferring citizenship. The
requirement of being ‘domiciled’ in India was the first criteria. In addition, anyone who
fulfilled one of the following three criteria would also be a citizen of India:
“(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
35
https://www.constitutionofindia.net/constitution_of_india/11/articles/Article%2011, (last visited
23/6/2021).
36
Hemant Singh, Citizenship Act of 1955: Provisions and Amendments, JAGRAN JOSH BLOG,
(23/6/2021, 4:30 PM), https://www.jagranjosh.com/general-knowledge/citizenship-1434782934-1.
37
Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614.
38
1 DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 478-479, (8th ed. Wadhwa and
Co. 2007).
19
(c) who has been ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement” 39
Although this reflects a combination of factors, the criteria of descent and domicile
are meant to be complementary, while the primary character is closer to the jus soli
conception since the emphasis was on physical presence in the territory of India. This
provision reflects the intention of the framers to move towards a modernist understanding
of citizenship.40
Article 6 focused on the “Rights of citizenship of certain persons who have

migrated to India from Pakistan”. It provided that “a person who has migrated to the
territory of India from the territory now included in Pakistan shall be deemed to be a
citizen of India at the commencement of this Constitution if “(a) he or either of his
parents or any of his grand-parents was born in India as defined in the Government of
India Act, 1935 (as originally enacted); and (b) (i) in the case where such person has so
migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the
territory of India since the date of his migration, or (ii) in the case where such person has
so migrated on or after the nineteenth day of July, 1948, he has been registered as a
citizen of India by an officer appointed in that behalf by the Government of the Dominion
of India on an application made by him therefore to such officer before the
commencement of this Constitution in the form and manner prescribed by that
Government”. A precondition for the registration was that he or she should have been
resident in India for at least six months prior to the date of the application.41
Article 7 deals with “Rights of citizenship of certain migrants to Pakistan”. It

provides that “a person who has after the first day of March, 1947, migrated from the
territory of India to the territory now included in Pakistan shall not be deemed to be a
citizen of India”42. A plain reading of the text of Articles 6 and 7 gives the impression of
a homogenous intent on part of the framers to commit to jus soli as the governing
principle of citizenship. However, the secular wording should not detract from the
39
INDIA CONST.art.5.
40
JAYAL, supra note 19.
41
INDIA CONST.art.6.
42
DD BASU, supra note 38, at 514.
20
religious undercurrents that informed the debates surrounding these provisions. Much like
the British colonizers whose modernist understanding of subject-hood was influenced by
the race factor, the framers of the Constitution of India too were influenced by communal
factors in their conceptualization of the category of ‘citizen’. The debates among the
framers are telling of the polarizing differences that existed amongst them. Articles 6 and
7 were drafted with two specific target groups in mind. Article 6 spoke to the Hindus who
fled Pakistan and sought refuge in India. Article 7, on the other hand, was drafted in the
context of the Muslims who had fled to Pakistan and may want to return to India at a
future date.43
During Partition, citizenship also operated as a tool of control in ascertaining the

national identity of women. In the year 1949, the Abducted Persons (Recovery and
Restoration) Act was passed by the Constituent Assembly. The title of this legislation
was its only gender neutral attribute. The Act was enacted to give effect to the
patronizing political arrangement between the governments of India and Pakistan that
sought to ‘restore’ Hindu women to India and Muslim women to Pakistan 44. Needless to
say, women were not stakeholders in this agreement, and their choice was not taken into
consideration. Women’s bodies became sites of contestation of sovereign authority. They
were branded as ‘naturally’ Indian or Pakistani45. The Partition, as can be seen here,
indubitably had a significant impact on the way people and leaders in post-colonial South
Asia conceived of national identities and citizenship.
Article 8 details the rights of citizenship of persons who reside outside India but are
of Indian descent.46 This category of people, unlike those referred to in Article 5, are
required to register to become citizens. Article 9 imposes a limitation on people who have
voluntarily become citizens of another State and bars them from acquiring Indian
citizenship47. Article 10 titled “Continuance of the rights of citizenship”, is a provision
43
JAYAL, supra note 19, at 72.
44
45
46
INDIA CONST.art.8.
47
INDIA CONST.art.9.
21
detailing the power of the parliament as a limitation to the right of citizenship, rather than
a provision that confirms a right48.
Article 11 is a significant provision it vests in Parliament absolute power to enact

legislation on citizenship and its related aspects. It specifically empowers Parliament to
enact provisions in relation to the acquisition, loss and other matters related to citizenship
without being constrained by the constitutional provisions and the principles that underlie
them49.
2.6 INTERNATIONAL LAW AND MIGRATION DUE TO RELIGIOUS

PERSECUTION:
The existence of refugees dates back to time immemorial. Their internationally

accepted legal definition however was only developed in mid-20th century and is
reflected in the Convention relating to the Status of Refugees 50. Firstly, it must be noted
that Western states, which initially saw the admission of refugees to be consistent with
their more general political goals, found the persecution-based definition to be quite
capable of embracing virtually all émigrés from the socialist states of Europe. Moreover,
determining that refugees faced ‘persecution’ in their state of origin supported efforts to
ascribe inappropriate behavior to the ideological adversaries of the East 51. It may be thus
accurately stated that in a widely prevalent Western view of the time, refugee movements
48
INDIA CONST.art.10.
49
INDIA CONST.art.11.
50
The Convention Relating to the Status of Refugees,1951, art 1 (A), the term “refugee” shall apply to any
person who:(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928
or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or
the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the
International Refugee Organization during the period of its activities shall not prevent the status of refugee
being accorded to persons who fulfills the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being outside the country of
his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it. In the case of a person who has more than one nationality, the term “the country of his
nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to
be lacking the protection of the country of his nationality if, without any valid reason based on well-
founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
51
James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 31 HARV. INT'L. L.
J. 129, 184 (1990),http://www.mcrg.ac.in/RLS_Migration_2019/Readings_MODULE_F/
Hathaway_Underlying%20Premise%20of%20Refugee%20Law.pdf
22
were good, as long as they provided the receiving countries with the means of attacking
an adversary as well as manpower for reconstruction and development52.
Secondly, the Article 1(A) (2) of the 1951 Convention Relating to the Status of
Refugees was originally intended to deal exclusively with existing refugees. The concept
of ‘refugees’ whom the 1951 Convention was initially designed to protect was therefore
very limited and not at all universal, but rather European. The phrase “as a result of
events occurring before 1 January 1951” 53 was retained until the adoption of the Protocol
Relating to the Status of Refugees48, by which the temporal clause was eliminated.54
Although the 1951 Convention seems considerably to limit the scope of ‘refugee’
by enumerating five factors – i.e. race, religion, nationality, social group and political
opinion – as the reason for their persecution, in fact it establishes rather broad categories.
It should also be especially noted that while general International Law referred at that
time to actual persecution, the 1951 Convention talked of the ‘fear of being persecuted’.
The ‘fear of being persecuted’ indicated the mental state of putative refugees, showing
the terror of persecution and their anxiety or misgivings at the likelihood of persecution.
To use their state of mind as the criterion in establishing their refugee hood is a subjective
requirement and the term ‘well-founded’ was added to make the yardstick more
objective; i.e. the test is subjective, the evidence required is not. The adjective ‘well-
founded’ was meant to signify that a “person has either been actually a victim of
persecution or can show good reason why he fears persecution”.55
However, since ‘persecution’ has not been defined in normative terms in

International Refugee Law, its meaning has been developed by a substantial body of
academic, administrative and judicial interpretations, there being no uniform scholarly
definition or practice. Scholars normally refrain from defining the term ‘persecution’.
52
Maiani, Francesco, the Concept of “Persecution” in Refugee Law: Indeterminacy, Context-sensitivity,
and the Quest for a Principled Approach. Les Dossiers du Grihl, (2010).
https://www.researchgate.net/publication/41597263_The_Concept_of_Persecution_in_Refugee_Law_Indet
erminacy_Context-sensitivity_and_the_Quest_for_a_Principled_Approach. last visited 23/6/2021.
53
The Convention Relating to the Status of Refugees, 1951, art 1 (A) (2).
54
Id.
55
UN High Commissioner for Refugees (UNHCR), Convention relating to the Status of Stateless Persons.
Its History and Interpretation, 1997, https://www.refworld.org/docid/4785f03d2.html , last visited
15/6/2021.
23
They would rather analyse its various components. One of the few definitions of
‘persecution’ by a leading Refugee Law expert describes it as “the sustained or systemic
violation of basic human rights demonstrative of a failure of state protection”56
A similar definition, based on a decision by the House of Lords is that

‘persecution’ means the failure (or absence) of State protection against a serious harm,
including persistent discriminatory acts”57. Notwithstanding the meritorious goal of
widening the scope of refugee status beneficiaries, these broad definitions would serve
almost no purpose in the real world, particularly if national migration authorities
responsible for determination of eligibility of asylum-seekers use a rather restrictive
interpretation of what constitutes ‘basic human rights’ and ‘failure of state protection’58.
To avoid the perils of restrictive interpretation, principles of International Human

Rights Law have been shaping the way ‘persecution’ is interpreted and determined.
Increasingly scholars and national adjudication authorities are using human rights norms
as a framework for analysing which types of harm amount to ‘persecution’. Thus harm to
the individual should be assessed in light of International Human Rights instruments;
recognition of an international human rights standard for assessing whether a feared harm
is persecutory however it does not eliminate all the complexities of such determination.59
In a doctrinal endeavor to develop interpretation of the term ‘persecution’ by

relating it to Human Rights values, the UNHCR claims that there are several forms of
harm that amount to persecution, including:
(i) serious physical harm, loss of freedom, and other serious violations of basic human
rights as defined by international human rights instruments;
56
J.C. HATHWAY AND M. FOSTER, THE LAW OF REFUGEE STATUS, 183 (2 nd ed,.2013)
Cambridge University Press.
57
H. Lambert, “The Conceptualization of ‘Persecution’ by the House of Lords: Horvath v. Secretary of
State for the Home Department”, 13 (1/2) INTERNATIONAL JOURNAL OF REFUGEE LAW, 30,
(2001).
58
M. Gibney, “A Well-Founded Fear of Persecution”, 10 HUMAN RIGHTS QUATERLY 120, (1988).
59
Jose H. Fischel De Andrade, On the Development of the Concept of ‘Persecution’ in International
Refugee Law, 2 BRAZILIAN YEARBOOK OF INTERNATIONAL LAW 114, 124 (2008)
http://centrodireitointernacional.com.br/static/anuario/3_V2/anuario_3_v2.pdf.
24
(ii) discriminatory treatment which lead to consequences of a substantially prejudicial

nature (for instance, serious restriction on the applicant’s right to earn his or her living, to
practice his or her religion, to access normally available education facilities); and
(iii) a combination of numerous harms none of which alone constitutes persecution but
which, when considered in the context of a general atmosphere in the applicant’s country,
produces a cumulative effect which creates a well founded fear of persecution.60
2.6.1 INTERNATIONAL STANDARDS ON FREEDOM OF RELIGION OR

BELIEF
A brief overview on the various freedom of religion or belief recognized by the

international organization through conventions namely UDHR, ICCPR and 1981
Declaration of General Assembly.
i. FREEDON TO ADOPT, CHANGE OR RENOUNCE A RELIGION OR

BELIEF
Under UDHR, "Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief [...]."61
ICCPR Art. 18 (1): "Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom to have or to adopt a
religion or belief of his choice [...]." 62
1981 Declaration of the General Assembly
Art. 1 (1): "Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have a religion or whatever belief of
his choice [...]."63
ii. FREEDOM FROM COERCION
60
Supra note 7.
61
UDHR, art 18 , https://www.un.org/sites/un2.un.org/files/udhr.pdf, accessed on 23/9/2021.
62
ICCPR, art 18.
63
Rapporteur’s Digest on Freedom of Religion or Belief, p.6 available at,
https://www.ohchr.org/Documents/Issues/Religion/RapporteursDigestFreedomReligionBelief.pdf, accessed
on 23/9/2021.
25
Under UDHR, "Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom [...] either alone or in community with others
and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance."64
The following Articles of ICCPR state right against coercion

Art. 18 (2): "No one shall be subject to coercion which would impair his freedom
to have or to adopt a religion or belief of his choice."
Art. 1 (2): "No one shall be subject to coercion which would impair his freedom
to have a religion or belief of his choice."
iii. THE RIGHT TO MANIFEST ONE’s RELIGION OR BELIEF
ICCPR, Art. 18 (1): "Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom [...] either individually
or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching."
Art. 18 (3): "Freedom to manifest one's religion or beliefs may be subject only to
such limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of others."
Art. 1 (1): "Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have a religion or whatever belief of
his choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching."
Art. 1 (3): "Freedom to manifest one's religion or belief may be subject only to
such limitations as are prescribed by law and are necessary to protect public
safety, order, health or morals or the fundamental rights and freedoms of others."
iv. FREEDOM TO WORSHIP
64
UDHR, art 18.
26
Art. 6 (a): The right to freedom of thought, conscience, religion or belief includes
the freedom, "To worship or assemble in connection with a religion or belief
[...];".
Art. 6 (c): The right to freedom of thought, conscience, religion or belief includes
the freedom, "To make, acquire and use the necessary articles and materials
related to the rites or customs of a religion or belief;"65
v. PLACES OF WORSHIP
Art. 6 (a): The right to freedom of thought, conscience, religion or belief includes
the freedom, "To worship or assemble in connection with a religion or belief, and
to establish and maintain places for these purposes;"66
vi. THE RIGHT OF PARENTS TO ENSURE THE RELIGIOUS AND
MORAL EDUCATION OF THEIR CHILDREN
ICCPR, Art. 18 (4): "The States Parties to the present Covenant undertake to have
respect for the liberty of parents and, when applicable, legal guardians to ensure
the religious and moral education of their children in conformity with their own
convictions."
Migrant Workers Convention Art. 12 (4): "States Parties to the present
Convention undertake to have respect for the liberty of parents, at least one of
whom is a migrant worker, and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions."
Art. 5:1. The parents or, as the case may be, the legal guardians of the child have
the right to organize the life within the family in accordance with their religion or
belief and bearing in mind the moral education in which they believe the child
should be brought up.
2. Every child shall enjoy the right to have access to education in the matter of
religion or belief in accordance with the wishes of his parents or, as the case may be,
legal guardians, and shall not be compelled to receive teaching on religion or belief
65
Supra note 61, at 15.
66
Id.
27
against the wishes of his parents or legal guardians, the best interests of the child
being the guiding principle.
4. In the case of a child who is not under the care either of his parents or of legal
guardians, due account shall be taken of their expressed wishes or of any other proof
of their wishes in the matter of religion or belief, the best interests of the child being
the guiding principle.67
vii. DISCRIMINATION ON THE BASIS OF RELIGION OR BELIEF/INTER-

RELIGIOUS DISCRMINATION/ TOLERANCE
ICCPR
Art. 2 (1): "Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as [...]
religion [...]."
Art. 5 (1): "Nothing in the present Covenant may be interpreted as implying for any
State, group or person any right to engage in any activity or perform any act aimed at
the destruction of any of the rights and freedoms recognized herein or at their
limitation to a greater extent than is provided for in the present Covenant."
Art. 26: "All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as [...] religion [...]."
Art. 27: " In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language."
viii. STATE RELIGION
Human Rights Committee general comment 22
67
28
Para . 9: "The fact that a religion is recognized as a State religion or that it is established
as official or traditional or that its followers comprise the majority of the population, shall
not result in any impairment of the enjoyment of any of the rights under the Covenant,
including articles 18 and 27, nor in any discrimination against adherents to other religions
or non-believers. In particular, certain measures discriminating against the latter, such as
measures restricting eligibility for government service to members of the predominant
religion or giving economic privileges to them or imposing special restrictions on the
practice of other faiths, are not in accordance with the prohibition of discrimination based
on religion or belief and the guarantee of equal protection under article 26. The measures
contemplated by article 20, paragraph 2, of the Covenant constitute important safeguards
against infringement of the rights of religious minorities and of other religious groups to
exercise the rights guaranteed by articles 18 and 27, and against acts of violence or
persecution directed towards those groups. The Committee wishes to be informed of
measures taken by States parties concerned to protect the practices of all religions or
beliefs from infringement and to protect their followers from discrimination.68
Similarly, information as to respect for the rights of religious minorities under article 27
is necessary for the Committee to assess the extent to which the right to freedom of
thought, conscience, religion and belief has been implemented by States parties. States
parties concerned should also include in their reports information relating to practices
considered by their laws and jurisprudence to be punishable as blasphemous."
Para . 10: "If a set of beliefs is treated as official ideology in constitutions, statutes,
proclamations of ruling parties, etc., or in actual practice, this shall not result in any
impairment of the freedoms under article 18 or any other rights recognized under the
Covenant nor in any discrimination against persons who do not accept the official
ideology or who oppose it."
2.6.2 THE RIGHTS OF REFUGEE UNDER THE CONVENTION RELATING TO

THE STATUS OF REFUGEES, 1951.
68
29
The 1951 Convention contains a number of rights and also highlights the
obligations of refugees towards their host country. The cornerstone of the 1951
Convention is the principle of non-refoulement contained in Article 33. According to this
principle, a refugee should not be returned to a country where he or she faces serious
threats to his or her life or freedom. This protection may not be claimed by refugees who
are reasonably regarded as a danger to the security of the country or having been
convicted of a particularly serious crime or are considered a danger to the community.69
Other rights contained in the 1951 Convention include:
1. The right not to be expelled, except under certain, strictly defined conditions (Article
32);
2. The right not to be punished for illegal entry into the territory of a contracting State
(Article31);
3. The right to work (Articles 17 to 19);
4. The right to housing (Article 21);
5. The right to education (Article 22);
6. The right to public relief and assistance (Article 23);
7. The right to freedom of religion (Article 4);
8. The right to access the courts (Article 16);
9. The right to freedom of movement within the territory (Article 26);
10. The right to be issued identity and travel documents (Articles 27 and 28).
Some basic rights, including the right to be protected from refoulement, apply to
all refugees. A refugee becomes entitled to other rights the longer they remain in the host
country which is based on the recognition that the longer they remain as refugees, the
more rights they need.70
2.7 CONCLUSION:
69
United Nations High Commissioner for Refugees (UNHCR), The 1951 Convention and its 1967
Protocol-Relating to the Status of Refugees, Switzerland, September 2011,
https://www.unhcr.org/4ec262df9.pdf.
70
Id.
30
As mentioned above the constitutional provisions were only meant to determine

citizenship at the time of commencement of the Constitution. The substantive framework
for citizenship was put in place by the Citizenship Act of 1955 which was enacted by the
Parliament in accordance with the powers detailed in Article 11. This Act was
supplemented by the Citizenship Rules of 1956, which were repealed by the Citizenship
Rules, 2009 (The Citizenship Rules, 2009, Rule 43). As of now the Citizenship Act 1955,
Citizenship (Amendment) Act 2019 and the Citizenship (Second) Amendment Rules,
2018 constitute the current legal regime of citizenship in India. This legal regime is
discussed in the following chapters.
Further, the chapter gives a birdseye view of the International Conventions

recognizing religious persecution. The various conventions like UDHR, ICCPR, the 1951
Convention and suggestions by Human Rights Committees have recognized few of the basic
rights relating to right to religion and belief and basic rights for migrants. Many of these rights are
incorporated in the Constitution of India under Part III. Article 6 and 9 of ICCPR is incorporated
under Article 21 of the Constitution of India, Right to life and liberty; Article 18 of ICCPR
incorporated as Article 25, Right to freedom of thought, conscience and religion. 71
71
Dr.S.K.KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS, 926-927 (20th ed,.Central Law
Agency, 2016).
31
CHAPTER 3
THE CITIZENSHIP ACT, 1955

3.1 INTRODUCTION
Citizenship is the relationship between an individual and a state to which the

individual owes allegiance and in turn is entitled to its protection. Citizenship implies the
status of freedom with accompanying responsibilities. Citizens have certain rights, duties,
and responsibilities that are denied or only partially extended to aliens and other non-
citizens residing in a country. In general, full political rights including the right to vote
and to hold public office are predicated upon citizenship. The usual responsibilities of
citizenship are allegiance, taxation and military service. Citizenship is the most privileged
form of nationality. This broader term denotes various relations between an individual
and a state that do not necessarily confer political rights but do imply other privileges
particularly protection abroad. It is the term used in international law to denote all
persons whom a state is entitled to protect. 72
3.2 MODES OF ACQUIRING CITIZENSHIP:
The Constitution of India dealt with citizenship at the time of its commencement
whereas the Citizenship Act, 1955 deals with the aspect of citizenship after the
72
Britannica, The Editors of Encyclopaedia. "Citizenship". Encyclopedia Britannica, 3 Sep. 2020,
https://www.britannica.com/topic/citizenship. Accessed 30 July 2021.
32
commencement of the Constitution. The Parliament in exercise of the powers given to it

under article 11 of the Constitution has passed the Citizenship Act, 1955, making
provisions for acquisition and termination of citizenship after the commencement of the
Constitution.73
Certain provisions of the Act have been made retrospectively applicable. This is
where the peculiarity arises. These provisions have been made retrospectively applicable
from January 1950, whereas the citizenship related provisions in the Constitution are said
to commence in November 1949. This anomaly creates a situation of indeterminacy of
citizenship in the time period between November 1949 and January 1950. The
Citizenship Act, 1955 details modes of acquisition of Indian citizenship after the
commencement of the Constitution and loss of citizenship.74
The Citizenship Act, 1955 provides for the acquisition of Indian citizenship after
the commencement of the Constitution by any of the following methods;
1. Citizenship by birth
2. Citizenship by descent.
3. Citizenship by registration
4. Citizenship by naturalization
5. Citizenship by incorporation of territory
6. Overseas Citizenship
3.2.1 CITIZENSHIP BY BIRTH:
In its original form, Section 3 provided that ‘every person born in India on or
after 26 January 1950 shall be a citizen of India by birth.’ However there are
exceptions to this provision. Firstly, if a person’s father enjoys diplomatic immunity
and is not a citizen of India. Secondly if a person was born in a territory occupied by
enemies and his father was an enemy alien. In this form of Section 3, the jus soli
principle of citizenship is seen as being consonant with the constitutional regime of
73
Supra note 7.
74
Id.
33
citizenship. As a general rule, a person, regardless of the citizenship of his or her

parents, was automatically an Indian citizen by virtue of having been born in India.75
The principle of jus soli is also reflected in Section 2(2) which stipulates the
citizenship of a person born in transit aboard a ship or an aircraft. The inference is
that if a person is born in a ship or aircraft that is owned by the government of India
then he or she is deemed to have been born in India even if the ship or aircraft is in
international waters or flying over international airspace.76
The Section 3 was amended twice following in the year 1986 and 2003. There
has been a visible shift in legal regime from the principle jus soli to jus sanguinis. The
cause for this shift can be traced back to period between the late 1970s to the early
1980s. The context of the 1986 amendment can be drawn from the Citizenship
(Amendment) Act, 1985 and the factors responsible for it. The narratives of these two
amendments are inextricably linked, in that the 1985 amendment informed the
framing and conceptualization of the 1986 amendment. A perusal of the statement of
objects and reasons of the 1986 amendment reveals that one of its stated objectives
was “preventing automatic acquisition of citizenship of India by birth”. 77 The 1986
amendment signified the first codified attempt directed specifically at diluting the jus
soli character of section 3 of the Citizenship Act.
Accordingly, Section 3(1) was amended to read:
“Except as provided in sub-section (2), every person born in India –
(a) on or after the 26th day of January, 1950, but before the commencement of the
Citizenship (Amendment) Act 1986,
(b) on or after such commencement and either of whose parents is a citizen of India
at the time of his birth, shall be a citizen of India by birth.”78
The following are the limitations placed by section 3. The first is in the form of
the timeframe in clause (a) by which only persons born before the commencement of
1986 will qualify automatically for citizenship by birth. The second limitation which
75
MP JAIN, INDIAN CONSTITUTIONAL LAW, 843-844, (8th ed. Lexis Nexis 2018).
76
The Citizenship Act, 1955. s.2, No.57, Acts of Parliament, 1955 (India).
77
The Citizenship (Amendment) Act, 1986, Statement of Objects and Reasons.
78
The Citizenship (Amendment) Act, 1986, s.3(1), No.51, Acts of Parliament, 1986 (India).
34
is triggered on or after the amendment of 1986 is that in addition to being born in the
territory of India, a person should also have some nexus with the territory through
descent, i.e., either of his or her parents should be Indian citizens when he or she was
born. It is through this added requirement of nexus by descent that persons born after
the stipulated time period are precluded from automatically acquiring Indian
citizenship. The amended provision sat rather uneasily with the constitutional regime
of citizenship. The framers of the Constitution of India were, for the most part
following the secularizing impulse of modernity in codifying the principle of jus soli
as the governing principle of citizenship.79
It is important to note that unlike the 1986 amendment, the 1985 amendment
made no changes to the text of Section 3. What is relevant in the context of Section 3,
however, is that the political developments surrounding the 1985 amendment
informed how the problem was framed in the legal context of the 1986 amendment.
The framing of this problem as the foreigners’ issue in the statement of objects and
reasons of amending legislation lent itself to serving as a justification for
incorporating elements of jus sanguinis in the statutory regime.80
While the Assam Accord and the resultant amendment in 1985 undoubtedly
catalyzed the shift to a jus sanguinis regime, they were not the only factors
responsible for this shift. The influx of foreigners was not confined only to Assam.
The Indian state of Tamil Nadu was contemporaneously witnessing an influx of
refugees who were fleeing Sri Lanka. Like India Sri Lanka too is a multiethnic
country comprised mainly of the Sinhalese, Tamils and the Sri Lankan Moors. The
Sinhalese are Buddhists constituting 74.9% of the Sri Lankan population and form the
majority.81 The longstanding ethnic conflict between the Sri Lankan Tamils and the
Sinhalese severely impacted the plantation Tamils. The conflict reached a flashpoint
79
Supra note 7.
80
The term ‘foreigner’s issue’ was first used in the Memorandum of Understanding signed between the
Central Government and the All Assam Students Union. (Assam Accord, 1985),
http://www.assam.gov.in/documents/1631171/0/Annexure_10.pdf?version=1.0). cited by Ashesh Ashna,
& Thiruvengadam Arun, Report on citizenship law : India, [Global Governance Programme],
GLOBALCIT, Country Reports, 2017/12 Retrieved from Cadmus, European University Institute Research
Repository, http://hdl.handle.net/1814/47124.
81
2020 CIA WORLD FACTBOOK AND OTHER SOURCES,
https://theodora.com/wfbcurrent/sri_lanka/sri_lanka_people.html, last visited 30/6/2021.
35
in 1983 as a result of which a significant number of Tamil refugees had fled to India.
It is estimated that as many as 1, 00,000 Tamil refugees came to India in the
aftermath of the onset of the civil war in Sri Lanka in the early 1980s. This inflow of
Tamil refugees continued in a phased manner till 04 April, 2012.82
As of 01 November 2016, the estimated number of Tamil refugees in India,

specifically in Tamil Nadu which is where the refugees are predominantly settled was
1, 01,219.83 The Tamil refugees constitute one of the largest groups of refugees in
India; the other group is the Tibetan refugees. Hence due to the mass influx of
refugees from Bangladesh, Nepal and Sri Lanka that the 1986 amendment was
enacted.84
In 2003 further limitations were incorporated into Section 3 to the effect that
anyone born before 2003 would acquire citizenship if either of his or her parents were
born in India. However anyone born after 2003 would acquire citizenship only if both
of his or her parents are Indian citizens or if one his parents are not an illegal migrant
at the time of birth. This is to be read in conjunction with the 2003 amendment to
Section 6.85
3.2.2 CITIZENSHIP BY DESCENT:
A person who is born outside India on or after January 26, 1950, is a citizen of
India by descent if his/her father was a citizen of India by birth. A person born outside
India on or after December 10, 1992, but before December 3, 2004, and if either of
his/her parents were a citizen of India by birth shall be considered a citizen by
descent. Also, if a person born outside India or after December 3, 2004, has to acquire
citizenship, his/her parents have to declare that the minor does not hold a passport of
another country and his/her birth is registered at an Indian consulate within one year
of birth, he/she shall be considered to be a citizen by descent.86
82
Department of Rehabilitation, Tamil Nadu, Data on Tamil refugee population,
http://www.rehab.tn.nic.in/camps.htm. last visited 30/6/2021.
83
Id.
84
85
The Citizenship (Amendment) Act, 2003, s.3 & 6, No.6, Acts of Parliament, 2004.
86
Diksha Garewal, Citizenship Law in India | All you need to know, LEGAL BITES, (Jul 1, 2021, 7:30
PM), https://www.legalbites.in/citizenship-law-in-india.
36
The section 4 of the principal Act (citizenship by descent) had its subsection (1)
replaced wholesale:
(1) In section 4 of the principal Act, for sub-section (1), the following sub-sections
shall be substituted, namely:
(1) A person born outside India shall be a citizen of India by descent,
(a) on or after the 26th day of January, 1950, but before the 10th day of December,
1992, if his father is a citizen of India at the time of his birth; or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of
India at the time of his birth: Provided that .... 87 The amended section liberalized
descent via father to descent via either parent.
3.2.3 CITIZENSHIP BY REGISTRATION:
A person, who has not acquired citizenship under the provisions of citizenship
Act, 1955, can acquire it by registration on application made by him subject to the
conditions and restrictions that may be prescribed by appropriate authority. A person
who wants to acquire citizenship by registration must fulfill any of the following
conditions under section 5 of the Citizenship Act 1955 -
1) A person of Indian Origin, who ordinarily resides in India and have been so
resident for 6 months immediately before making an application for registration.
2) A person of Indian Origin who ordinarily a resident of any country or place outside
undivided India.
3) Women who are have been married to a citizen of India.
4) Minor Children of Persons Indian citizens.
87
The Citizenship (Amendment) Act, 2003, s.4, No.6, Acts of Parliament, 2004.
37
5) Persons of full age and capacity who are citizen of U.S.A, Canada, Australia, New
Zealand, South Africa , Pakistan, Ceylon, Rhodesia and Ireland. These people
required to take oath of allegiance before registration.88
3.2.4 CITIZENSHIP BY NATURALISATION:
Section 6 deals with the acquisition of citizenship by naturalisation. The

original, un-amended version of this Section provided that any person of ‘full age and
capacity who is not a citizen of any country specified in the First Schedule’ can apply
for citizenship and the Central Government after determining whether such a person
satisfies the qualifications spelt out in the Third Schedule, may grant a certificate of
naturalisation. However, a person does not become a citizen merely by acquiring this
certificate. He or she is required to take an oath of allegiance as per the Second
Schedule and it is only after swearing to this oath that he or she will qualify as an
Indian citizen.89
Section 6 does provide for an exception where the government is of the

opinion that the applicant is an eminent person who has made integral contributions to
“science, philosophy, art, literature, world peace or human progress”, all or any of the
requirements of the Third Schedule can be waived. 90 The 2003 amendment replaced
the words ‘First Schedule’ in Section 6 with the phrase ‘illegal migrants’. 91 The origin
of this phrase goes back to the 1985 amendment. The statement of objects and reasons
of the 1985 amendment describes the foreigners’ issue as reference to the problem of
mass influx of illegal migrants. It was to redress this persisting problem that Section
6A was introduced by the 1985 amendment.
Section 6A sought to create two categories of people – people who had been
residing in Assam before 1 January 1 1966 and people who came to Assam from
Bangladesh “on or after the 1st day of January, 1966 but before the 25th day of
March, 1971” and were detected as foreigners. The first category of people were
deemed to be citizens of India merely by ordinarily residing in Assam and because
88
MP JAIN, supra note 75, at 844.
89
90
Id.
91
The Citizenship (Amendment) Act, 2003, s.6, No.6, Acts of Parliament, 2004.
38
their names featured in electoral rolls for the purposes of the General Election held in
1967.92 The second category of people would have to register as per the rules made
under Section 18. These second categories of people were entitled to the same rights
as ordinary Indian citizens with one notable exception. The people in this category
would not be able to exercise their right to vote for en years following the date on
which they were detected as foreigners.93
3.2.5 CITIZENSHIP BY INCORPORATION OF TERRITORY:
Section 7 deals with the status of people in territories that were not originally
part of Independent India but were/are subsequently acquired, in effect becoming part
of the territory of India. Section 7 confers on the Central Government the power to
pass orders that specify which persons in the acquired territory would qualify as
Indian citizens. In accordance with these powers, subsequent to the ceding of the
French and Portuguese colonies of Pondicherry, Daman and Diu, Goa, and Dadra and
Nagar Haveli, relevant citizenship orders were passed in 1962. It should be noted that
the citizenship orders pertaining to the territories of Goa, Pondicherry and Daman and
Diu allowed for the retention of previous citizenship. However, the territory of Dadra
and Nagar Haveli was not afforded this option. After the state of Sikkim was annexed
to the Indian Territory in 1975, a citizenship order was issued in the state to determine
the status of the people of Sikkim. Both Sections 5 and 7 have been the subjects of
significant amendments in 2003, 2005 and 2015.94
3.2.6 OVERSEAS CITIZENSHIP:
The Ministry of Home Affairs defines an Overseas Citizen of India as a person

who was a citizen of India on or after January 26, 1950; or was eligible to become a
citizen of India on that date; or who is a child or grandchild of such a person, among
other eligibility criteria. According to Section 7A of the OCI card rules, an applicant
92
The Citizenship (Amendment) Act, 1985.
93
Id.
94
Supra note 7.
39
is not eligible for the OCI card if he, his parents or grandparents have ever been a
citizen of Pakistan or Bangladesh. 95
The Constituent Assembly members exhaustively discussed on not providing

dual citizenship but in recent time the demand for dual citizenship gained attention. In
light of this demand, the government set up a committee in September 2000 to assess
the situation and submit recommendations with respect to fostering a constructive
relationship between India and the Indian Diaspora. The Committee stopped short of
making a recommendation for automatic dual citizenship. The rationale for not
advocating automatic acquisition of dual citizenship is provided in the executive
summary of the Committee’s report. The relevant portion of the summary reads “The
Committee recommended that dual citizenship should be permitted for members of
the Indian Diaspora who satisfy the conditions and criteria laid down in the legislation
to be enacted to amend the relevant sections of the Citizenship Act, 1955’.96
The Committee made detailed recommendations in this regard, being deeply

conscious of the heightened security concerns following the series of terrorist attacks,
especially the attack on India’s Parliament on December 13, 2001. The Committee
therefore did not recommend automatic conferment of dual citizenship, which would
have to be acquired by following the procedure laid down in the Parliamentary
legislation and the rules framed under it.”97
In light of these recommendations, the Citizenship (Amendment) Act, 2003

sought to grant overseas citizenship of India to persons of Indian origin subject to the
fulfillment of the prerequisites laid down in the amended legislation. This led to the
creation of the category of persons of Indian origin (PIO). 98 Subsequently, the
Citizenship (Amendment) Act, 2005 sought to expand the framework of overseas
citizenship and reduced the requisite period of residence in India for these persons
95
Express News Service, Explained — This Word Means: Overseas Citizen of India, THE INDIAN
EXPRESS, November 9, 2019 3:01:09 am, https://indianexpress.com/article/explained/explained-this-
word-means-overseas-citizen-of-india-6110730/ last visited 4/7/2021.
96
Report of the High Level Committee on the Indian Diaspora, 2002,
http://indiandiaspora.nic.in/contents.htm.
97
Report of the High Level Committee on the Indian Diaspora, 2002, Executive Summary, xxxvii,
http://indiandiaspora.nic.in/contents.htm.
98
40
from two years to one year.99 The 2005 amendment led to the creation of the status of
Overseas Citizenship of India (OCI). The two categories of PIO and OCI were
merged in 2011 as per the policy of the then government.
The Citizenship (Amendment) Act, 2015 replaced the term ‘Overseas Citizen
of India’ with the term ‘Overseas Citizen of India Cardholder’. It further diluted the
requirement of residence, mandating that a person has to ‘ordinarily’ reside in India.
This in effect means that prior to this amendment a person who wished to be
registered as an overseas citizen of India could not leave India for a year. However,
under the amending act of 2015, this requirement has been relaxed to allow such
persons to travel on account of exigent circumstances for a stipulated period of time
during the duration of the year of ordinary residence.100
3.3 MODES OF TERMINATION OF CITIZENSHIP:
The Citizenship Act, 1955 provides for 3 modes by which one can lose the
citizenship of India.
1. Renunciation of citizenship.
2. Termination of citizenship.
3. Deprivation of citizenship.
3.3.1 RENUNCIATION OF CITIZENSHIP:
Section 8 provides for the renunciation of Indian citizenship. Before the

amendment of section 8, a person had to be an adult, of full capacity, as well as a
national of another country to be eligible. However the 2003 amendment removed the
requirement of being a national of another country. It further omitted Section 8(3)
which read “For the purposes of this section, any woman who is or has been married
shall be deemed to be of full age”.101 No such corresponding requirement was
stipulated for a man nor can one glean any rationale for this differential treatment in
99
100
The Citizenship (Amendment) Act 2015.
101
41
determining the attainment of majority. Akin to 8(3), Section 8(2) also reflects
elements of a gendered narrative. In the 1955 version, the minor child of a male
person who had renounced his citizenship would cease to be a citizen of India.
However, such a minor could within one year of attaining majority, apply for Indian
citizenship. In 1992, Section 8 was amended to usher in a gender neutral turn of
phrase wherein ‘male person’ was substituted by any person.102
3.3.2 TERMINATION OF CITIZENSHIP:
According to Section 9 in the Citizenship Act, 1995 the following provisions

are provided for the termination of Citizenship. When a citizen of India voluntarily
acquires the citizenship of another country, then he ceases to be a citizen of India. But
a citizen of India who voluntarily acquires the citizenship of some other country
during the period of war, then his citizenship won’t be ceased till the Central
Government directs.103
3.3.3 DEPRIVATION OF CITIZENSHIP:
Section 10 of the Act empowers the central government to deprive a person of

Indian citizenship if he or she has obtained citizenship through fraud, if he or she is
disloyal to the Constitution, or if he or she has assisted an ‘enemy’ in a war that India
is fighting, among other instances.104
3.4 SUPPLEMENTARY PROVISIONS:
The supplementary provisions of the Citizenship Act mostly deal with matters
of administrative support and import. The Central Government or any prescribed
authority has discretion to grant or refuse an application under section 5, 6 and 7A. 105
However the powers of Central Government under section 14 are subject to the
provisions of section 15 which states, the person aggrieved is given an opportunity to
make an application to the central government for revision of such order within 30
102
103
https://blog.ipleaders.in/citizenship-india/#Termination_of_Indian_citizenship.
104
105
The Citizenship Act, 1955, section 14
42
days. The decision of the Central Government shall be final and such decision shall
not be questioned in any court of law.106
The Central Government has powers to appoint an authority to exercise powers

conferred to it under this Act other than those section 10 and section 18. 107 The
Section 18 confers power to the Central Government to make rules to carry out the
purposes of this Act.108
3.5 CONCLUSION
From the analyses of above collected data conclusions can be drawn that
parliament has sole discretionary authority to frame laws with subject to Citizenship.
The people who might be excluded from the CAA for acquiring citizenship of India
has many other alternative ways which is acquiring citizenship through registration,
naturalisation. The hue and cry about the enactment of CAA by certain sections of
society is in vain as the citizenship laws have been amended various times in the past
by the parliament as per the need of the time and demand of circumstances.
106
The Citizenship Act, 1955, section 15, 15A
107
The Citizenship Act, 1955, section 16
108
The Citizenship Act, 1955
43
CHAPTER-04
CRITICAL ANALYSIS OF THE CITIZENSHIP (AMENDMENT)

ACT, 2019
“[L]aw, without equity, though hard and disagreeable, is much more

desirable for the public good, than equity without law: which could
make every single judge a legislator, and introduce most infinite
confusion.”- William Blackstone.109
4.1 INTRODUCTION
The Citizenship (Amendment) Act, 2019 (herein after as CAA) was passed by the
Parliament of India on 11 December 2019. It amended the Citizenship Act, 1955 by
providing a pathway to Indian citizenship for persecuted religious minorities from
Afghanistan, Bangladesh and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis or
Christians, and arrived in India before the end of December 2014. The Citizenship
(Amendment) Bill, 2016 was introduced in the Lok Sabha on 19 July 2016, which sought
to give citizenship to illegal immigrants belonging to the same six religions of the three
countries by tweaking the Citizenship Act of 1955. However, the Bill lapsed with the
dissolution of the 16th Lok Sabha.110
109
WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 62 (4th ed.
1770).
110
Rahul Nair, The Citizenship (Amendment) Act, 2019 – A Constitutional Defence, 9 NLIU LAW
REVIEW 351, 352-353 (2020).
44
Subsequently, the Citizenship (Amendment) Bill, 2019, was tabled in the Lok
Sabha in December 2019, enacted on 12 December 2019, and came into force on January
10, 2019. The Act deviates from the original Bill in two ways. First, it excludes certain
areas in the North-East. Second, it reduces the minimum threshold required to undergo
the process of naturalisation, from at least 11 out of 14 years to at least 5 out of 14 years,
thus, providing an accelerated path to acquire citizenship.111
In 2015 and 2016 respectively, the Central Government issued notifications which
exempted certain communities of illegal immigrants, namely Hindus, Sikhs, Buddhists,
Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who arrived in
India on or before December 31, 2014, from the provisions of the Passport (Entry into
India) Act, 1920 and the Foreigners Act, 1946. Those provisions authorized the
Government to deport and imprison illegal immigrants for lacking valid documents.
Under the prevailing law, an illegal immigrant is a foreigner who: (i) enters India without
valid travel documents, like a passport or (ii) enters India with a valid passport or other
travel documents but remains therein beyond the permitted period of time.112
Further it needs to be noted at the outset that the CAA has not been suddenly
sprung upon the nation as a bolt from the blue. The Citizen Amendment Bill on which the
CAA is based has been in the public domain since 2016 and was duly cleared by a 30
member Parliamentary Select Committee. It is only after much debate, analysis, and due
democratic process that it was enacted into a law on 12 December 2019.113
There have been huge protests held against the CAA on the ground that it violates
the principle of Secularism enshrined in the Constitution of India. Secularism is a
Constitutional value diffused throughout Part-III. The relevant Articles could be Article
14 (Equality before law), Article 21 (right to life and liberty), Article 15 (Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth), Article 16
111
Id.at 354.
112
MINISTRY OF HOME AFFAIRS NOTIFICATION, G.S.R. 685(E) & G.S.R.686 (E), 7th September,
2015, G.S.R. 702(E) & G.S.R. 703(E) 18th July, 2016, New Delhi.
113
Amb Satish Chandra, Citizenship Amendment Act: Uncalled for Protests, VIFIINDIA December 23,
2019, https://www.vifindia.org/article/2019/december/23/citizenship-amendment-act-uncalled-for-protests,
accessed on 1.8.2021.
45
(Equality of opportunity in public employment), Article 25 (freedom of conscience),

Article 26 (freedom to manage religious affairs), Article 27 (prohibition on religion
specific tax), Article 28 (protection of minority script and culture) and finally Article 30
(rights of minorities to administer educational institutions).114
Except for Article 14 and Article 21, rest of the Articles of Part III of the
Constitution of India is applicable exclusively for Citizens only. Hence the idea of
secularism are the Constitution seems to be a directed exclusively towards citizens and
not foreigners yet to acquire citizenship.
4.2 TEST OF CONSTITUTIONALITY UNDER ARTICLE 14
Article 14 of the Constitution mandates that no person shall be denied equality

before the law or the equal protection of the law within the territory of India. 115 The said
Article while it commands the State not to deny to any person ‘equality before law’, it
also commands the State not to deny the ‘equal protection of the laws’. Equality before
law prohibits discrimination. It is a negative concept. The concept of ‘equal protection of
the laws’ requires the State to give special treatment to persons in different situations in
order to establish equality amongst all. It is positive in character. Therefore, the necessary
corollary to this would be that equals would be treated equally, whilst un-equals would
have to be treated unequally.116
Article 14 of the Constitution of India permits classification, so long as it is

reasonable, but forbids class legislation. 117 While Article 14 forbids class legislation it
does not forbid reasonable classification of persons, objects, and transactions by the
legislature for the purpose of achieving specific ends. But classification must not be
“arbitrary, artificial or evasive”. It must always rest upon some real and substantial
114
Prof.Suvrajyoti Gupta, A Constitutional Defence Of The Citizenship Amendment Bill, Dec 10, 2019
06:38 PM, https://swarajyamag.com/ideas/a-constitutional-defence-of-the-citizenship-amendment-bill
accessed on 1.8.2021.
115
INDIA CONST. art.14.
116
Indra Sawhney Etc. Etc v. Union Of India And Others, Etc. AIR 1993 SC 477.
117
Ram Krishna Dalmia v Mr. Justice S.R. Tendolkar, 1958 AIR 538.
46
distinction bearing a just and reasonable relation to the object sought to be achieved by
the legislation.118
For the classification to be reasonable must fulfil the following two conditions.
Firstly the classification must be founded on the intelligible differentia which
distinguishes persons or thing that are grouped together from others left out of the group.
Secondly the differentia must have a rational relation to the object sought to be achieved
by the act. The differentia which is the basis of the classification and the object of the act
are two distinct things. What is necessary is that there must be nexus between the basis of
classification and the object of the act which makes the classification. It is only when
there is no reasonable basis for a classification that legislation making such classification
may be declared discriminatory.119
The true meaning and scope of Article 14 have been explained in a number of cases
by the Supreme Court. In view of this the propositions laid down in Damia case 120 still
hold good governing a valid classification and are as follows.
1. A law may be constitutional even though it relates to a single individual if on account

of some special circumstances or reasons applicable to him and not applicable to others,
that single individual may be treated as a class by itself
2. There is always presumption in favour of the constitutionality of a statute and the

burden is upon him who attacks it to show that there has been a clear transgression of
constitutional principles.
3. The presumption may be rebutted in certain cases by showing that on the fact of the
statue, there is no classification and no difference peculiar to any individual or class and
not applicable to any other individual or class, and yet the law hits only a particular
individual or class
118
1 HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, 436-437, (4th ed. Universal Law Publication,
2017).
119
D.D.BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA, (22nd edition, 2015).
120
Shri Ram Krishna Dalmia v Shri Justice S. R. Tendolkar, 1958 AIR 538.
47
4. It must be assumed that Legislature correctly understand and appreciates the need of its
own people that its law are directed to problem made manifest by experience and that its
discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report and the history of the
times and may assume every state of facts which can be conceived existing at the time of
the legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its restriction
to those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature
are to be presumed, if there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the classification may
reasonable be regarded as based, the presumption of constitutionality cannot be carried to
extent always that there must be some undisclosed and unknown reason for subjecting
certain individuals or corporation to be hostile or discriminating legislation.
8. The classification may be made on different bases e.g. geographical or according to

object or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or logically
complete. Mathematical nicety and perfect equality are not required. Equality before the
law does not require mathematical equality of all persons in all circumstances. Equal
treatment does not mean identical treatment. Similarly not identity of treatment is
enough.
10. There can be discrimination both in the substantive as well as the procedural law.
Article 14 applies to both. If the classification satisfies the test laid down in the above
propositions, the law will be declared constitutional.
4.3 THE CITIZENSHIP AMENDMENT ACT, 2019 (CAA) AND ARTICLE 14

48
The intelligible differentia that the State makes under the CAA is based on two
distinct classifications. First, the religion of the target community that has undergone
religious persecution, which is an internationally recognised form of persecution. Second,
this particular exercise limits its scope to only those neighbouring countries that have
Islam as its state religion. From the above stated objects of the CAA the Act fulfils the
‘why’ element, i.e., the social object, which is to protect the people who are being
atrociously persecuted; it fulfils the ‘what’ element, i.e., the special treatment that would
be provided by granting the status of citizenship and the ‘whom’ element, i.e., the
criterion for identifying the class subjected to special treatment by formally recognising
religious persecution.121
The Supreme Court has said that no foreigner (immigrant) has a right to
Citizenship in India. It is only a privilege that can be conferred on him by the
action of either the prescribed authority or the Government of India. However the
Citizenship Act governs the procedure that should be followed in dealing with the
application for registration for the Indian citizenship. But No foreigner can have a
fundamental right or much less a right to register himself as Indian citizen. Then it is
implied that the foreigner (non-citizen) has no right and as such no right to challenge the
provisions of the enactment (Citizenship Act, 1955) as ultravires of the Constitution of
India.122
The fundamental right of the foreigner is confined to Article 21 for life and liberty
and does not include the right to reside and settle in this country, as mentioned in art
19(1)(e) which is applicable only to citizens of this country. The power of the
government in India to expel foreigners is absolute and unlimited and there is no
provision in the constitution fettering this discretion. 123 It has been argued that the power
to expel an alien also has to be exercised only in accordance with the principles of natural
justice and a foreigner is also entitled to be heard before he is expelled.124
121
Nair, supra note 108, at 354.
122
David John Hopkins v. Union of India, 1995 SCC OnLine Mad 383.
123
Louis De Raedt v. Union of India, (1991) 3 SCC 554.
124
Id.
49
The Constitution bench of the Supreme Court in Hans Muller of Nuremberg vs.
Superintendent Presidency Jail, Calcutta held that the power of the Government in India
to expel foreigner is absolute and unlimited and there is no provision in the constitution
fettering this discretion.125 Further the Division Bench in another case reiterated the above
judgment and held in cases of orders of deportation; the principles of natural justice are
inapplicable.126
4.4 TEST OF INTELLIGIBLE DIFFERENTIA
Dating back to the time of the partition of India, the partition of Bengal and Punjab
has been diametrically opposite in historical experiences. In Punjab, partition was a
jhatka — mass slaughter followed by population exchange. By 1949 the relative
demographics of the communities have stabilized. Articles 5 to 10 of the Constitution
more or less settled the question of citizenship in the west. While in Bengal, it was a
“halal” — slow destruction of the Bengali Hindus in Bangladesh over a period of 70
years. The Hindu population in Bangladesh fell from 23 per cent in 1947 to about 8.4
percent in 2011 to 10.7 per cent in 2015 127. Since the early 1980s, the eastern border also
saw the proliferation of Muslim migrants. This migration created justified demographic
anxieties in Assam and the North East, resulting in protracted insurgencies.128
In 1950, the Nehru-Liaquat Ali Treaty was entered into to ‘ensure to the minorities
throughout its territory complete equality.’ The pact was officially the Agreement
Between the Governments of India and Pakistan Regarding Security and Rights of
Minorities, was signed on April 8, 1950, Jawaharlal Nehru and Liaquat Ali Khan were
the Prime Ministers of India and Pakistan. The Nehru-Liaquat Pact, also known as the
Delhi Pact, was a bilateral agreement signed between India and Pakistan in order to
provide a framework for the treatment of minorities in the two countries.129
125
AIR 1955 SC 367.
126
Ananda Bhavani (a) Geethanando, Ananda Ashram, Pondicherry v. Union of India (1991 MLW (Crl.)
393).
127
Bangladesh’s Hindus number 1.7 crore, up by 1 p.c. in a year: report , THE HINDU, Jun 23,
2016 ,https://www.thehindu.com/news/international/Bangladesh%E2%80%99s-Hindus-number-1.7-crore-
up-by-1-p.c.-in-a-year-report/article14397035.ece.
128
Nair, supra note 108.
129
Explained Desk ,Explained: The Nehru-Liaquat Agreement of 1950, referred to in the CAB debate, THE
INDIAN EXPRESS , December 12, 2019. https://indianexpress.com/article/explained/explained-what-was-
the-nehru-liaquat-agreement-of-1950-referred-to-in-the-cab-debate-6162191/, last visited 16/7/2021.
50
Under the pact “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,” 130 Further refugees were allowed to
return unmolested to dispose of their property, abducted women and looted property
were to be returned, forced conversions were unrecognized and minority rights were
confirmed.131 It failed miserably. Thereafter, India maintained a policy of granting
citizenship under registration under section 5(1) of the Act.
This was discontinued after the Bangladesh war through an executive order dated
29 November 1971, whereby the Government of India through its Under Secretary C.L.
Goyal issued an express letter No. 26011/16/71-10 to the Chief Secretaries to all state
governments and Union Territory Administrations. The order reads: Grant of Indian
citizenship to refugees from East Bengal who have crossed over to India after 25 March
1971 — instructing not to register the refugees from East Pakistan as Citizens. This
policy was solidified by the amendment of the Citizenship Act in 2004 that now requires
a person not to be an “illegal immigrant” (i.e. someone who has entered India without
valid papers) to be registered as citizens. Thus, a vast number of Bengali Hindus from
Bangladesh live and work in India and own properties and documents but have no locus
standi for citizenship.132
While contentions have been taken that the migration is largely driven by ‘climate
vulnerabilities, economic opportunities, community networks etc. While these could
indeed be ancillary reasons for migration but the prosecution of the Hindus and Buddhists
in Bangladesh is a well-established fact. This is acknowledged internationally, being part
of the records of the United National High Commission for Refugees, Report of the US
130
NEHRU-LIAQUAT AGREEMENT, NEW DELHI, 8th April 1950
https://mea.gov.in/Portal/LegalTreatiesDoc/PA50B1228.pdf.
131
Prabhash K Dutta , What is Nehru-Liaquat pact that Amit Shah referred to defend Citizenship
Amendment Bill?, INDIA TODAY, New Delhi December 10, 2019, https://www.indiatoday.in/news-
analysis/story/nehru-liaquat-pact-that-amit-shah-referred-to-defend-citizenship-bill-1627036-2019-12-10,
last visited 24/7/2021.
132
Suvrajyoti Gupta, A Constitutional Defence Of The Citizenship Amendment Bill, SWARAJAMAG, Dec
10, 2019, https://swarajyamag.com/ideas/a-constitutional-defence-of-the-citizenship-amendment-bill, last
visited 24/7/2021.
51
Commission on Religious Freedom and various international organizations. The Muslim

immigrants do not suffer from religious persecution.
The court can simply take judicial notice of it under section 57 of the Indian
Evidence Act, 1872 thereby establishing the “intelligible differentia”. The law, by taking
note of the fact, has eliminated the need for every migrant to prove the fact of
“persecution”. When it comes to the Ahmediyas and Rohingyas they still can seek Indian
citizenship through naturalization if they enter India with valid travel documents.
However, as India follows the principle of non-refoulement 133 (even without acceding to
the Refugee Convention 1951), they would not be pushed back.
4.5 MARGINAL EXCLUSION OF OTHER RELIGIOUS MINORITIES AND

MUSLIMS
The Constitutionality of the CAA is further challenged on following grounds.

Firstly, the CAA overlooks religious communities like Jews and Muslim minorities like
Shias and Ahmadiyas, who may have been persecuted in Afghanistan, Pakistan or
Bangladesh.134 In reference to the exclusion of Jews, National Database and Registration
Authority (“NADRA”) which is a top Database official of Pakistan states there are only
about 745 registered Jew families in Pakistan135 and Zablon Simintov is the one and only
remaining Jew in Afghanistan.136
Hence it is judicially established that as long as the extent of over inclusiveness or

under-inclusiveness of the classification is ‘marginal,’ the Constitutional vice of
133
Under international human rights law, the principle of non-refoulement guarantees that no one should be
returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment
and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration
status.
134
Abhinav Chandrachud, Secularism and the Citizenship Amendment Act , SSRN, (January 4,
2020), https://poseidon01.ssrn.com/delivery.php?
ID=52809409307402810209500607209306602705108106000002809109406407302309606400906406608
70491010300350001201070870080061230640760760200580460150330640940030290931190930880200
33042127002096078074003003100124029075002117100102102104004111094100072073077081106&E
XT=pdf.
135
Danish Hussain, Pakistani man wins right to change religion from Islam to Judaism,
THE EXPRESS TRIBUNE, (March 27, 2017), https://tribune.com.pk/story/1366268/man-interfaith-
parents-wins-right-religionchoice/.
136
Aneesa Shaheed, Afghanistan’s Only Jew ‘Worried’ About The Country’s Future,
TOLO NEWS, (30 May,2018), https://tolonews.com/afghanistan/afghanistan%E2%80%99s-onlyjew%
E2%80%98worried%E2%80%99-about-country%E2%80%99s-future.
52
infringement of Article 14 would not infect the legislation. Such conceptually quixotic
attitude of subjecting every law to the impossible perfectionist requirement has never
found support from the Indian judiciary. Hence, this ‘marginal’ under inclusiveness that
would arise out of the absence of Jews under CAA would not vitiate the classification.137
Furthermore, while dealing with the case of Shias and Ahmadiyas, the distinction
that is drawn is between religious persecution and sectarian violence. The Act concerns
itself only with the ‘religiously’ persecuted minorities. While the legal drafting may
sometimes be imperfect, but often the imperfection is the outcome of a compromise that
is not the function of the courts to upset or to make impossible for the future by
dismissing the words used in the statutory law. Deviating from the text of the Act would
only result in the occurrence of inconsistencies with the textually manifest object of the
Act.138
Moreover, citing Hindutva policies, political ideologies or election manifesto of a

political party, when stripped of rhetoric, has no relevance and cannot be taken into
account for determining the constitutional validity of any enactment whether made by
State or by Centre, as it is a purely legal issue and lies within the domain of the
judiciary.139
4.6 SELECTIVE INCLUSION OF COUNTRIES
The question of non inclusion of the Rohingyas from Myanmar and the Sri Lankan
Tamils has been raised quite often while challenging the constitutionality of CAA. While
dealing with the Rohingyas, the important factor to be taken into consideration is the
imminent threat that this particular group poses to the security of the State. Bangladesh
Prime Minister Sheikh Hasina stated that the over 10 lakh Rohingyas who fled from
Myanmar to Bangladesh in the wake of ‘persecution’ are a ‘threat to the security’ of the
entire region.140
137
Id.
138
ANTONIN SCALIA & BRYAN A. GARNER, READING THE LAW: INTERPRETATION OF
LEGAL TEXTS (2012). Cited in Rahul Nair, The Citizenship (Amendment) Act, 2019 – A Constitutional
Defence, 9 NLIU LAW REVIEW 351, 352-353 (2020).
139
Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920.
140
Rohingyas 'threat' to national and regional security: Bangladesh PM Hasina, THE TIMES OF INDIA
53
There are reports suggesting that Rohingya terrorists have been fighting alongside
Pakistani extremists in the Kashmir Valley. 141 In such an unsafe scenario, the Indian
government has the discretion to decide on the interest of the State, protect the integrity
of this land, and preserve its essence without its decision being cribbed and confined by a
misplaced sense of arbitrariness, constitutional righteousness, and sanctimony. There is
no constitutional requirement that any such policy must be executed in one go. Policies
are capable of being actualised in a staged way. More so, when the policies have a
sweeping implementation and are dynamic in nature, their execution in a phased way is
welcome, for it receives gradual and systematic willing acceptance and invites lesser
resistance. The execution of such policy decisions in a phased manner is suggestive
neither of arbitrariness nor of discrimination.142These are matters of public policy and not
constitutional validity.
The government might be of the view that after the end of the civil war in Sri
Lanka, the situation of Sri Lankan Tamils has improved. Even if that is not the truth,
there is nothing that stops the government from making a law in the future for absorbing
those illegal immigrants (Sri Lankan Tamils), if the situation so warrants.
4.7 THE CUT-OFF DATE – IN CONSONANCE?
The CAA is also questioned on to the legal validity of the cut-off date as it appears
to be discriminatory to the public eye. What needs to be taken into consideration is that
any date chosen as a cut-off period does tend to be arbitrary to a certain extent, which is
only inevitable.143 Furthermore, there is no discrimination if the law applies by and large
to all persons who come within its ambit as from the date on which it is made operative,
regardless of it being prospective or retrospective in effect.144 The Court should not
normally interfere with the fixation of cut-off date by the executive authority as it lies
(PTI / Updated: Nov 11, 2019, 19:15 IST) https://timesofindia.indiatimes.com/world/south-asia/rohingyas-
threat-to-national-and-regional-security-bangladesh-pm-hasina/articleshow/72009641.cms
141
Dipanjan Roy Chaudhury, Rohingya terrorists linked to pro-Pak terror groups in Jammu & Kashmir,
THE ECONOMIC TIMES, (Jul 12, 2018,), https://economictimes.indiatimes.com/news/defence/rohingya-
terrorists-linked-topro- pak-terror-groups-in-jammu-kashmir/articleshow/55046910.cms?from=mdr.
142
Javed and Ors v. State of Haryana, AIR 2003 SC 3057: (2003) 8 SCC 369; Lalit Narayan Mishra
Institute of Economic Development and Social Change v. State of Bihar, AIR 1988 SC 1136; Pannalal
Bansilal Pitti v. State of AP, AIR 1996 SC 1023: (1996) 2 SCC 498.
143
Union of India v. Parameswaran Match Works, 1975 SCR (2) 573.
144
Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923.
54
within the domain of the executive unless such order appears to be on the face of it
blatantly discriminatory and arbitrary.145
There may be various considerations in the mind of the executive authorities due to
which a particular cut-off date has been fixed, which could include, inter alia,
administrative considerations. The Court cannot annul a statutory provision on the plea of
unreasonableness, arbitrariness, etc. as it contains a certain level of subjectivity.
Otherwise, the Court will be effectively substituting the wisdom of the legislature with its
own, which is impermissible in our democratic constitutional framework. 146 Therefore it
is expected that the Court would exercise judicial restraint and leave it to the executive
authorities to fix the cut-off date. The Government must be left with some freedom in this
regard.
Also, after relaxing the naturalisation process for availing citizenship from 11 years
to 5 years, it is only logical for the government to fix 31 December 2014 as the cut-off
period, which effectively ensures that no targeted individual has to wait before benefitting
from such a State measure, thereby making the cut-off date manifestly conjoined with the
object that is sought to be achieved.147
4.8 THE UNFULFILLED DREAM OF NEHRU- LIAQUAT
It may not be out of place to mention here the Nehru-Liaquat agreement. This
agreement, contracted between the governments of India and Pakistan in 1950, had
provisions which enshrined, among other things, a full sense of security in respect of life
and personal honour of the minorities of both sides. This pact conferred a ‘bill of rights’
for the minorities of both countries which intended to address the following three
issues,148
i) To alleviate the fears of the religious minorities on both sides.
ii) To elevate communal peace.
145
Govt. of AP v. N. Subbarayadu (2008) 14 SCC 702.
146
K.T. Plantation Pvt. Ltd. &Anr v State of Karnataka, AIR 2011 SC 3430.
147
Supra note 108.
148
Liaquat-Nehru Pact, STORY OF PAKISTAN, (June 1, 2003), https://storyofpakistan.com/liaquat-nehru-
pact/.
55
iii) To create an atmosphere in which the two countries could resolve their other
differences.
This agreement was not implemented in its true spirit by Pakistan 149, which resulted in
religious persecution taking place in Pakistan that the world is witnessing today. In Lok
Sabha, the members sat and debated at length on 13.02.1964 about the Nehru-Liaquat
agreement and how it had failed to secure to the minorities of Pakistan their democratic
and human rights. Our then Home Minister, Gulzari Lal Nanda voiced his concern about
the status of the minority communities in Pakistan and stated that if Pakistan was failing
to discharge its responsibilities, on human considerations, India will have to do
something about it because India cannot take a purely legal and constitutional view.150
He further said that if they (the minority community) find it impossible to “breathe
the air of security in their country and they feel that they must leave it, then we cannot bar
their way. We have no heart to tell them, ‘You go on staying there and be butchered’. We
cannot say that. We have no heart to say that. We cannot just see that they are perishing
in the flames of communal fire and let them perish. No. It will be inhuman to do.”151
Therefore, the ambiguity about the intention of the Parliament concerning the
matter of minorities in its neighboring countries is determinate. The above discussions
provides an insight into the Parliament's intention about the issue of religious persecution
from the very inception of the Constitution. Which later turned into a legislative bill
(Citizenship Amendment Bill, 2019), that was later ratified. Thus, the CAA is, or so it
seems, that alternative method that the government has adopted, which recognizes and
seeks to remedy the historical injustices meted against these minority communities of
neighboring countries without whittling down the rights of any other person.152
4.9 CITIZENSHIP POLICY- PREROGATIVE OF STATE
India has no obligation, neither constitutional nor international; to introduce an all-

encompassing policy to grant the status of citizenship to any illegal immigrant, let alone a
149
LOK SABHA DEBATES, Third Series, No. 4, (Feb 13, 1964) (speech of Gulzari Lal Nanda).
150
Supra note 145.
151
Id.
152
56
whole community of them. It is not a signatory to the Convention and the Protocol, which
would have allowed for intrusive supervision of the national regime by the UNHCR.153
The Refugee Convention recognizes a well-founded fear of religious persecution as

a form of persecution. The parliament has taken this particular international principle and
has moulded it into an enactment specific to context of India. Thus, the yardstick that is
applied here cannot simply be disregarded as a mark of line based on whimsical grounds
as it is not a generic, universal sable norm, but a specific formulation of standard. It seeks
to protect a specific class of people by addressing a specific issue that is recognized by
the International Convention itself.
Indeed, India does have a legal obligation to uphold the principle of non-
refoulement, which plays a pivotal role in customary international law and to treat the
illegal immigrants with a minimum amount of dignity and respect, while not violating
any of the basic human rights at the same time. The CAA, it should be obvious, while
granting citizenship to a certain set of people, violates no such international principle. It is
commonly acknowledged that issues on nationality fall within the domestic jurisdiction
of States and form part of domaine réservé, whereby the State enjoys unfettered
discretionary powers.154 This was further reiterated in the case of Daivid John Hopkins v.
Union of India, whereby the Court held that the Government of India enjoys unbounded
power to refuse citizenship to anyone without assigning reasons whatsoever. It was
further of the opinion that Section 14(1) of the Citizenship Act, from which the
Government derives the above powers, is not ultra vires Article 14 of the Constitution of
India.155
Furthermore, after studying of the Constituent Assembly Debates, it is clear as to

the extent of deference that was shown by the framers of our Constitution to the
Parliament in matters concerning citizenship. The relevant extract of the debate, as stated
153
UNHCR, The Refugee Convention, 1951:The Travaux préparatoires analysed with a Commentary by
Dr. Paul Weis, art. 35, 1990, https://www.refworld.org/docid/53e1dd114.html , accessed 25 July 2021.
154
Mónika Ganczer, International Law and Dual Nationality of Hungarians Living
Outside the Borders, 53 Acta Juridica Hungarica 316, 318 (2012). Cited by Rahul Nair, The Citizenship
(Amendment) Act, 2019 – A Constitutional Defence, 9 NLIU LAW REVIEW 351, 365 (2020).
155
Daivid John Hopkins v The Union of India and Ors, AIR 1997 Mad 366.
57
by Dr. B.R. Ambedkar is as follows– “The business of laying down a permanent law of
citizenship has been left to Parliament, and as Members will see from the wording of
Article 6 as I have moved the entire matter regarding citizenship has been left to
Parliament to determine by any law that it may deem fit.”
He further states, “The effect of Article 6 is this, that Parliament may not only take
away citizenship from those who are declared to be citizens on the date of the
commencement of this Constitution by the provisions of Article 5 and those that follow,
but Parliament may make altogether a new law embodying new principles. That is the
first proposition that has to be borne in mind by who will participate in the debate on
these articles. They must not understand that the provisions that we are making for
citizenship on the date of the commencement of this Constitution are going to be
permanent or unalterable. All that we are doing is to decide ad hoc for the time being.”156
Hence it can be noted that even the framers of the Constitution of India had the
intention to bestow the authority to grant citizenship with the parliament. This is
embedded in the form of Article 11 (draft Article 5).
4.10 CLASSIFICATION ON HISTORICAL GROUNDS
It is well established that reasonable classification may also be based on historical

reasons or events. In Mohan Lal’s case, the court said: “It is easy to see that the ex-rulers
formed a class and special legislation was based upon historical consideration applicable
to them as a class. A law made as a result of these considerations must be treated as based
upon a proper classification of such Rulers. It was based upon a distinction which could
be described as real and substantial and it bore a just relation to the object sought to be
attained.”157
The Statement of Objects and Reasons in the Citizenship Amendment Bill, 2019
states the following - “It is a historical fact that trans-border migration of population has
been happening continuously between the territories of India and the areas presently
comprised in Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided
156
Constituent Assembly Debate, vol. ix, p. 177-178.
157
Mohanlal v. Man Singh, AIR 1962 SC 73.
58
India belonging to various faiths were staying in the said areas of Pakistan and
Bangladesh when India was partitioned in 1947. The constitutions of Pakistan,
Afghanistan and Bangladesh provide for a specific state religion. As a result, many
persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have
faced persecution on the grounds of religion in those countries. Some of them also have
fears about such persecution in their day-to-day life where the right to practice, profess
and propagate their religion has been obstructed and restricted. Many such persons have
fled to India to seek shelter and continued to stay in India even if their travel documents
have expired or they have incomplete or no documents.”158
4.11 CONCLUSION
The researcher has come to a conclusion that it is on the basis of unjust past and
historical background based on partition of India which led to the exodus of large
population leading to trans-border migration. This trans-border migration has its
influence on the contemporary political and regional issues. Further in context of
atrocious religious persecution which is still alive and kicking, that such an amendment
was legislated, which has now become a law. In light of the law that have been analysed
on reasonable classification is in firm view that it is not violative of Article 14 of the
Constitution of India. Furthermore, awaiting framing of rules under the CAA by the
parliament for its effective implementation.
158
The Citizenship (Amendment) Bill, 2019, Statement of Objects and Reasons, para 2.
59
CHAPTER: 05
CITIZENSHIP (AMENDMENT) ACT, 2019 & ASSAM ACCORD,

1985
5.1 HISTORY OF ORIGIN OF STATE OF ASSAM:
The state of Assam is situated in the north-eastern part of India which has its own
unique history. Well known for its scenic natural beauty and ample of natural resources,
the state of Assam was an independent state until the British rule since 1826. So the
people of Assam were never ruled by a foreign entity nor felt the taste of slavery. Before
the British came to Assam, it was ruled by the famous Ahoms. But due to some political
reasons, Assam was attacked by the Burmese and started to torture the Assamese people
so, the British decided to intervene Assam and declared a war against Burmese and
finally through the “Treaty of Yandabo” (1826), the war had finally ended.159
The terms of the Treaty of Yandabo were that the British will never interfere in any
kind of issue related to Assam, but as time passed they started to exercise political and
economic control over Assam and indirectly Assam became a part of mainland India. In
later period, as a part of mainland India Assam had also participated in independence
movement against British administration and finally got independence. After the
independence the political issues of Assam had changed and one such issue was illegal
immigration into Assam from neighboring countries of India. This issue had not only
threatened the economy and demography of Assam but also posed grave danger to the
rights, traditions, culture and language of aboriginal Assamese.
159
Kabyashree Boruah, Movement against CAB (CAA) and the role of Assamese people : An analysis, 7
European Journal of Molecular & Clinical Medicine 1411, 1411 (2020).
60
The State of Assam witnessed a huge inflow of illegal migrants since the creation
of Bangladesh in 1971 the significant reason being the sharing of borders with
Bangladesh. The issue of illegal immigration became so high that the local Assamese
community got threatened and vulnerable about losing their local and unique cultural
identity and getting outnumbered in their own territory. These so-called illegal
Bangladeshi migrants are alleged to have caused a serious threat to the availability of
natural resources as well as the survival of the economic system of the State of Assam.
This issue also emerged in the other parts of India like West Bengal and in the North-
Eastern States like Tripura.
The large influx of immigrants from Bangladesh however posed a serious threat
majorly in the state of Assam as compared to its other neighboring states. The issue of
such illegal immigration reached the epitome when the Assam Agitation was launched in
1979-1985 where approximately 2,191 alleged Bangladeshi migrants including mostly
women and children were killed and burnt alive on February 18, 1983. This incident was
named the Nellie Massacre which became one of the largest massacres in the history of
Independent India. While on the other hand, 855 local Assamese people including
students had sacrificed their lives in this movement who were later declared Assam
Martyrs.160
The movement was still on fire and was getting even more fueled up until the
signing of the Assam Accord between the All Assam Students Union (AASU), Assam
Gana Sangram Parishad (AGSP) and the former Prime Minister, Mr. Rajiv Gandhi. This
Accord contained several provisions ensuring Constitutional and Legislative safeguards
to the identity of local people of Assam after which peace seemed to be resumed in
Assam. However, practically the treaty failed to solve the issue of illegal immigration to
the State of Assam which was the sole reason for the proposal of treaty.161
160
Shorbori Purkayastha, Nellie Massacre- How Xenopjolia, Politics General Assam’s Genocide,
QUINT.COM (Jan 24, 2019, 10:13 AM)) https://www.thequint.com/explains/nellie-massacre-explained,
last visited 9/8/2021.
161
Jayanta Boruah , Constitutional Validity Of Assam Accord In Accordance With The Validity Of
Citizenship (Amendment) Act, 2019, 3 IJLSI 117-127, 118 (2020),
https://www.ijlsi.com/wp-content/uploads/Constitutional-Validity-of-Assam-Accord-in-Accordance-with-
the-Validity-of-Citizenship-Amendment-Act-2019.pdf.
61
5.2 BACKGROUND OF ASSAM ACCORD
The issue of illegal immigration in the State of Assam existed even before the
independence of Bangladesh. It is estimated that this issue had begun in 1920 when a
huge influx of illegal migrants came from East Bengal who encroached on the lands
resaved for grazing in Assam. The communal policies initiated by the then leader of the
Assam Provincial Muslim League, S. M. Sadullah further aggravated the issue. When the
East Pakistan was created in 1947 there was increase in the inflow of Muslim population
in the State. All these led to serious tensions in the minds of the local tribal communities
in Assam. The first recorded huge scale migration to Assam from East Pakistan took
place in October 1946 after the Noakhali Riots. By May 1949 the number of illegal
migrants rose to 2,74,456 and from 1948 to 1971 this migration continued from East
Pakistan.162
The above influx of immigrants made the local Students Leaders rise in protest for
the identification and deportation of illegal migrants from the State of Assam. In 1978 the
death of Hiralal Patwaring and the increase of the names of foreigners in the electoral
lists for the elections added fuel to the fire amongst a few of the concerned sections of the
Assamese community who were mostly students. They demanded postponing elections
until the names of such foreigners were deleted. But it was not done for which the Assam
Movement popularly known as Assam Agitation was initiated at an All Assam level.163
In this movement, thousands of students and local Assamese people from across
the State participated under the banner of AASU and AGSP. The student organization
initially resorted to non-violent means of protest where AASU along with AGSP declared
the closure of all educational institutions as well as State and Central Government offices
in November 1979 and restricted all candidates from filing nominations for contesting the
upcoming elections. The State on the other hand deployed forces for curbing the protests
162
Dr. Kastubh Deka, Bengali Muslim who migrated to Assam in 1871 are not ‘Illegal Bangladeshis’,
SCROL.IN (21 Sept, 2021, 5:30 PM) https://scroll.in/article/664077/bengali-muslims-who-migrated-to-
assam-in-1871-are-not-illegal-bangladeshis.
163
Ajaz Ashraf, How two police officers and RSS changed the script of the Assam agitation against
outsiders in 1980s, SCROL.IN (21 Sept, 2021, 6:30 PM), https://scroll.in/article/865199/how-two-police-
officers-and-rss-changed-the-script-of-the-assam-agitation-against-outsiders-in-1980s.
62
initiated by AASU and AGSP. On December 10, 1979, which was the last date for filing
nominations, a State wide bandh was declared by AASU.
In the Barpeta district, a Police force led by UK PS Gill attacked a group of AASU
members who were demonstrating protests for restricting Begam Abida Ahmed from
filing nominations for contesting elections. In the attack, one Barpeta Student Union
leader named Khargeswar Talukdar was brutally beaten up to death by the Police force,
who was later declared as the First Martyr of the Assam Movement. While on October 7,
1982, another member of the Student’s Union named Anil Bora was beaten up to death
when he was leading a procession from Nagaon district to Hojai in support of a Bandh
declared by AASU, by those who opposed the Bandh and supported Bangladeshi
immigrants.164
All these led to serious resentment amongst the Student members and soon turned
the non-violent protests into a violent massacre known as a Nellie Massacre on February
18, 1983, where the local Assamese people killed around 2,191 suspected illegal migrants
in 14 villages of the Nagaon district. At the same time, 855 supporters of Assam
Agitation also had to sacrifice their lives, who were later declared respectfully as Martyrs
of Assam since this movement forced the then Prime Minister of India, Rajiv Gandhi to
come to Assam and to sign a Memorandum of Settlement with AASU and AGSP which
later came to be known as Assam Accord. The first four clauses of the Assam Accord
even mention the willingness of both the Central Government and AASU/AGSP for
resolving the issue and to work out a solution including giving constitutional as well as
legal protection to the Assamese Community by eliminating the issue of Foreigners from
the land.165
5.3 ANALYSIS OF THE PROVISIONS RELATING TO ILLEGAL

IMMIGRATION IN ASSAM ACCORD
164
165
Id, at 122.
63
The following are the clause by clause analysis of the Assam Accord. Clause 5 of
Assam Accord deals with the Foreigners issue where Clause 5.1 provided that January 1,
1966 shall be the base date and year for deletion of the names of Foreigners from the
electoral rolls; Clause 5.2 provided that those who came to Assam before the said date
and have their names registered in the electoral rolls shall be regularized; Clause 5.3
provided that those Foreigners who came to Assam after the said date but before March
24, 1971 and have their names in the electoral rolls shall be treated according to the
provisions of Foreigners Act of 1946 and Foreigners (Tribunals) Order 1964; Clause 5.4
provided that the names of the above Foreigners shall be deleted from the electoral rolls
and they shall register themselves in the Registering Offices within the respective
districts as per the provisions of Registration of Foreigners Act and its Rules 1939;
Clause 5.5 made the Government responsible to take suitable measures for maintaining
the above said purpose; Clause 5.7 provided that all those who were earlier expelled but
subsequently entered Assam illegally shall be again expelled; Clause 5.8 provided for
detecting, deleting and taking practical steps for expelling those Foreigners who entered
Assam after March 25, 1971; and Clause 5.9 made the Government responsible to
consider certain difficulties as highlighted by AASU/AGSP while implementing the
Illegal Migrants (Determination by Tribunals) Act 1983.166
The Assam Accord further provided for several other provisions like giving
Constitutional and Legal safeguards for protecting the identity, culture. Languages, etc. of
the Assamese Community; speedy measures are to be taken by the Government for
boosting up the economic development of the region where national level institutions are
to be set up for promoting educational developments; citizenship certificates were to be
issued only by the Authorities of the Central Government; special considerations will be
given to the complaints made by AASU/AGSP regarding irregular issuance of Indian
Citizenship Certificates (ICC); to secure the international borders of the State of Assam;
to regularly maintain the registration of births and deaths; to strictly enforce the laws
relating to restriction on acquisition of land by Foreigners, etc.167
166
Assam Accord and its Clauses, Government of Assam, Implementation of Accord, Aug 22, 2021
https://assamaccord.assam.gov.in/portlets/assam-accord-and-its-clauses.
167
Id.
64
The facts relating to implementation of terms of the Assam Accord are: Clause 5.1
has already been complied with and is in practice 168; Clause 5.2 has been implemented;
regarding Clause 5.3 a total of 75,489 people were held as Foreigners till 31st March
2016 out of which 33,186 were declared to be Foreigners from 1966-71while 42,303
were held to be Foreigners of post-1971. Amongst them 14,198 people registered their
names with their respective Foreigners Registering Officers; as regards Clause 5.4 out of
33,015 Foreigners from 1966-71, 13,931 people registered themselves with the
Registering Officers; under Clause 5.5 Government had shown interest in taking suitable
steps for the purposes determined in the Clause; for Clause 5.6, steps were being taken;
under Clause 5.7 around 1432 re-infiltrators were detected and deported from 1986-2014.
After the invalidation of the IM (DT) Act by the Supreme Court 169, the following
Acts are used for detection and deportation of illegal migrants from the State of Assam,
via- the Foreigners Act and its Rules of 1956; The Passport Act of 1920; the Immigration
(Expulsion from Assam) Act, 1950; and the Citizenship Act 1955. To further implement
the provisions of this Act the Citizenship Act was amended and a new Section via,
Section 6A was inserted into the Act which legally validated Clause 5 of the Assam
Accord.170
The government had further undertaken several other initiatives to give effect to
the other provisions of the Assam Accord, like the establishment of Srimanta Sankardeva
Kalakshetra; Jyoti Chitraban Film Studio Scheme was implemented by investing 8.79
crores; and several other initiatives were taken for boosting up economic, educational and
other infrastructural developments in the State of Assam.171
5.4 MOVEMENT AGAINST CAA BY PEOPLE OF ASSAM
The National Register of Citizens (hereinafter NRC) is a register maintained by the

Government of India containing names and certain relevant information for the
identification of genuine Indian citizens. The register was first prepared after the 1951
168
Cl. 5.1: For purposes of detection and deletion of foreigners, 1.1.1966 shall be the base date and year.
169
Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.
170
Supra note 163.
171
Id.
65
census of India. In 2013, the process of updating Assam’s part of NRC has started. In
31st August 2019, the final updated of NRC had been published, which contained 31
million names out of a population of 33 million. It left out about 19 million applicants
that announced as illegal immigrants as Indian citizen which can be a vote bank for them.
Another important point is those states which have inner line permit and constitutional
safeguard for their people are excluded from the CAA i.e, these states do not have to take
the responsibility of these citizens.
The people of Assam have started the movement against the CAA. Within a few
days, this movement gained huge momentum and hence the government of Assam
declared that soon they will fulfill the demand of constitutional safeguard for Assamese
people according to Assam accord (clause 6). This declaration has changed the whole
political Scenario of Assam Some castes and tribes has started to demand Government of
Assam to fulfill their dreams, which are been explained as follows-
(i) DEMAND FOR AUTONOMOUS COUNCIL: -

Just after the Assam movement we have seen the emergence of numerous political
parties, literary bodies, student organizations. These groups generally focused on their
own group’s development, to create identity consciousness among the people of Assam.
But the movement against CAA reduced this identity consciousness to some extent. but
to stop this mass movement the Government of Assam decided to fulfill the unfulfilled
dreams of some castes and tribes. One such step of the government was to declare
establishment of autonomous council for moran , motok and kunch rajbanshi people. As
a result, those groups (caste & tribe) who were excluded from this have started to demand
autonomous and satellite autonomous council for them. For example, we can talk about
the kalita’s demand of Pragjyutis Kalita Autonomous Council on 22 Dec, Mess kachari
jatiya parishad’s and Hazong Student Union’s demand for autonomous council on 24
Dec 2019 on the other hand some other groups like Ahom and Goriya Mouya have
started to demand for Satellite Autonomous Council.
ii) DEMAND FOR INCLUSION IN SCHEDULE CASTE (SC) CATEGORY: -

66
We know that reservation is a controversial issue in India. For some people reservation
creates inequality and hatred among people. But some people who don’t belong from any
reserved category want to include themselves as reserved category. During the movement
against CAA some groups took the movement as an opportunity to fulfill their dreams.
So, they started demanding to include their community as Schedule Caste. One such
example is demand of Kami community (Grokha) to categorize themselves as Schedule
Caste.
iii) DEMAND FOR SCHEDULE TRIBE (ST) STATUS: -

To safeguard of the interests, rights and privileges, the six communities of Assam has
started to demand for Schedule Tribe status during the time of movement against CAA.
At the first phase of the movement the people of Assam had only one motive, (to
prevent the CAA) but as the time passed they were divided into many groups and so their
motive too. On the other hand, some of the leader of these groups joined the ruling
political party to fulfill their political motive. As example we can talk about Kajal
Gohain, Secretary of All Assam Motak Sanmilan, who actively joined the movement at
first, but later he withdrew himself from it and joined BJP (Bharatiya Janata Party).
Hence it can be seen that political motives have influenced the direction of the agitation
of moment against the CAA but finally it’s the people of Assam who gets to own the
consequences.
5.5 ARGUMENTS FOR AND AGAINST CONSTITUTIONAL VALIDITY OF

ASSAM ACCORD
The Constitutional validity of the Assam Accord along with Section 6A of

Citizenship Act, 1955 was challenged before the Supreme Court of India for the first time
by Assam Sammilita Mahasangha on the grounds that it being against the General Rule
of Uniformity as regards the determination of citizenship is concerned since Assam
Accord as well as Section 6A of Citizenship Act, 1955 made separate provisions for
67
deterring citizenship in Assam with the rest part of India which was alleged to be
discriminatory.172
Furthermore, it was also alleged that AASU being a non-registered organization

was not in a capacity to give effect to a Memorandum of Settlement with the Central
Government and the treaty was not even initially backed by the support of the Parliament
of India. Upamanya Hazarika, a Supreme Court Advocate stated that this Accord will go
against the interest of the Assamese local people since in a town called Barnyhat in
Meghalaya which is on the border of Assam, a Bangladeshi immigrant will have to prove
his/her residence before 1948 while after walking a distance of one kilometer into Assam,
the same Bangladeshi immigrant will require to prove his/her residence before 1971. This
will increase the number of illegal immigrants in Assam. 173All these factors have created
a reasonable doubt on the validity of the Assam Accord on one hand and the applicability
of the adequate machinery for solving the issue of illegal immigration on the other hand.
5.6 CONFLICTING PROVISIONS BETWEEN ASSAM ACCORD AND

CITIZENSHIP (AMENDMENT) ACT, 2019
After passing of the Act of 2019, it directly came in conflict with the provisions of
the Assam Accord, since the Accord provided 25th March 1971 as the deadline for
determining illegal migrants in the State of Assam while CAA of 2019 provided for 31st
December 2014 as the deadline for determining citizenship. This led to the declaration of
many existing illegal Bangladeshis as legal Assamese residents who were to be detected
and deported under the Assam Accord. Thus, those persons who were illegal migrants
under the Assam Accord were now given legal protection as citizens of India under the
newly passed CAA, 2019. 174
5.7 CAA AND THE SPECIAL SITUATIONS IN ASSAM
172
Assam Sanmilita Mahasangha v. Union of India, WP(C) 562/2012.
173
Rohit Prasad, Opinion: The time inconsistency of the Assam Accord, LIVEMINT, 8 Aug 2018, 08:43
PM, https://www.livemint.com/Opinion/fV9Ns2Fa7clWcCexJ3NhAO/Opinion-The-time-inconsistency-of-
the-Assam-Accord.html. last visited 21/9/2021.
174
Legal Validity of Assam Accord Questioned, ASSAM TRIBUNE, 15 Sep, 2010 5:30 AM,
http://www.assamtribune.com/scripts/detailsnew.asp?id=aug1310/at05.
68
The situation in Assam is very unique as regards the implementation of CAA is

concerned, in comparison to the rest of the Country. The Assamese people under the
leadership of AASU and several other organizations are protesting against CAA neither
because it is anti-secular nor because it is discriminatory. The reason behind the protest is
very simple. It is because Assam has seen a history of struggle with the issue of illegal
immigration ever since the British Rule, at the end of the 19th Century, where Assamese
people had to struggle and sacrifice their lives to protect their language and culture, not
against any Muslim groups but against Hindu Bengalis and the movement was known as
“Bhasa Andolon” which took place to avoid Bengali language being used as Official
language in the land of Assam.
From the analysis of all the above facts and circumstances, it is clear that the newly
passed CAA has violated the provisions of the Assam Accord. The Constitutional validity
of CAA is also challenged on various grounds but for the people of Assam, security of
their identity matters more than the Constitutionality of the CAA. However, CAA is not
going to give shelter to any new illegal immigrants so therefore it can be expected that if
CAA gets enforced then it might bring a permanent solution to the issue of illegal
immigration forever. But again one can introspect that at present the nation is ruled by
BJP led Government who has successfully been able to pass the CAA in the Parliament
due to its overwhelming majority in both the Houses of the Legislature, but in future if
the opposition party comes to power with majority and brings an amendment to the same
Act. Hence the State of Assam and rest of the nation has to live with this uncertain
thought regarding uncertain future of Citizenship laws.
69
5.8 NATIONAL REGISTER OF CITIZENS (NRC)
National Register of Citizens (herein after as NRC) as the name suggests is the
register containing the names of all the Indian Citizens. Until now there has been only
one NRC in 1951 which was based on the data that was collected during the 1951 census.
Now the process of up-gradation of NRC has been put in place by the Supreme Court in
Assam. Such up-gradation will be based on the data of NRC 1951, or Electoral Rolls up
to the midnight of 24th March, 1971 or any one of the other admissible documents issued
up to mid-night of 24th March, 1971, which would prove their presence in Assam or in
any part of India on or before 24th March, 1971. 175 Thus there are two aspects to getting
one’s name on NRC, they are, existence of a person’s name in the pre-1971 period and
proving linkage with such person to get their names included in NRC (legacy data).
In Assam, one had to apply for inclusion. An applicant had to pick any one of the
documents under two heads i.e. list A and list B. The documents could not be from a date
later than the cut-off date of March 24, 1971 (Midnight). There are 14 documents in List
A.176 Those who did not have any 1971 documents that mention their name, can show any
one of the documents named in List A if it mentions their parents/grandparents along
with one more document from List B (with 8 options) to establish a connection 177. For
175
Government of Assam, ‘National Register of Citizens’ or click https://assam.gov.in/en/ main/NRC as
accessed on 19,Aug, 2021.
176
List A:1951 NRC : Electoral roll(s) up to 24 March (midnight), 1971, Land and tenancy records,
Citizenship certificate, Permanent residential certificate, Refugee registration certificate, Any government
issued license/certificate, Government service/employment certificate, Bank or post office accounts, Birth
certificate,State educational board or University educational certificate, Court records/processes, Passport
& Any LIC policy.
177
List B: Birth certificate, Land document, Board/university certificate, Bank/LIC/post office records,
Circle officer/ gaon Panchayat secretary certificate in case of married
women, Electoral roll, Ration card and Any other legally acceptable document.
70
women married to other places, and with no documents to pick from list B to establish a
family link, the State allowed circle officer or gaon panchayat secretary certificate that
need not be on or before the 1971 date and a ration card issued on or before the 1971
date.
Assam has seen waves of migration, first as a colonial province and then as a
border state in independent India. For decades, the presence of migrants, often called
“bahiragat” or outsiders have been a burning issue. The first National Register of
Citizens was compiled in 1951 after the Census to determine who is a genuine citizen and
who is an undocumented immigrant. In 1978, during a by-poll to the Mangoldoi Lok
Sabha constituency, which was necessitated due to the sudden demise of Hiralal Patwarit
there was detection of 45,000 illegal names in the electoral rolls which triggered the
popular consensus to tackle mass infiltration in the state. There was a demand of revision
of the electorate rolls before the election. The AASU demanded that election be
postponed and the names of the foreign nationals be deleted from the electoral rolls.
The NRC is now updated only in Assam, to comply with the demands in the Assam
Accord. To update the NRC, it was decided in 2005 at a tripartite meeting between the
Centre, Assam Government and AASU. To apply for inclusion in the NRC, one’s name
or one’s ancestor’s name must be in the 1951 NRC or in any voter list up to the midnight
of March 24, 1971, the cut-off date agreed upon in the Assam Accord. If the applicant’s
name is not on any of these lists, he can produce any of the other documents dated up to
March 24, 1971, like land or tenancy record, citizenship certificate or permanent
residential certificate or passport or court records or refugee registration certificate. If the
applicant’s ancestor’s name is on any of these lists, the applicant will have to prove his
relationship to his ancestor by producing his board or university certificate, ration card or
any other legally acceptable document.
The current process of updating the NRC is the consequence of a 2009 Public
Interest Litigation filed in the Supreme Court by the NGO, Assam Public Works, which
claimed that 4.1 million illegal Bangladeshis had found their way into Assam’s voter
list178. In 2017, an interim report of the Brahma committee for the protection of land
178
Assam Public Works v. Union of India and Ors, WP(C) 274/2009.
71
rights of the indigenous people of Assam, headed by ex-CEC H.S Brahma said that
illegal Bangladeshis dominated in as many as 15 of the 33 districts of the State.179
On 14th July, 2004, in response to an unstarred question pertaining to deportation

of illegal Bangladeshi migrants, the Minister of State, Home Affairs, submitted a
statement to Parliament indicating therein that the estimated number of illegal
Bangladeshi immigrants into India as on 31st December, 2001 was 1.20 crores, out of
which 50 lakhs were in Assam.180 Such a huge influx of illegal immigrants is bound to
change the demographic structure of the state which will reduce the indigenous Assamese
population to a minority in their own land; furthermore the indigenous people of Assam
would have to face the loss of opportunity because of such a huge influx of illegal
migrants. 181
The process of NRC is detected with many deficiencies but one cannot deny that it
is need of the hour. Awaiting the final list of illegal immigrants excluded from the list
some measures needs to be devised about what needs to be done with illegal immigrants
who are identified.
Since India is a signatory to numerous international covenants relating to human

rights and therefore the Indian government cannot take any measures that might go
against the principles and ethics of international law. As far as the equitability of the
exercise is concerned, till now, 11 per cent of illegal immigrants have been identified in
the Barak Valley (predominantly Hindu Bengalis) and 11 per cent illegal immigrants
have been identified as Bangladeshi Muslims, suggesting that the entire NRC process has
remained as secular in its approach as possible. Therefore, the communal colour that is
being given to the process is a flawed interpretation.182
179
Rohini Kr. Baruah and Ors, BRAHMA COMMITTEE REPORT, 15, (30th December, 2017),
https://pratidintime.sgp1.digitaloceanspaces.com/2018/05/BRAHMA-COMMITTEEM-Report.pdf.
180
Assam Sanmilitia Mahasangha & Ors v. Union of India &Ors. 3 SCC 1, 2015.
181
Dr. Pallavi Devi , The Juxtaposition of NRC and CAA: A Socio-Legal Analysis with Reference to the
People of Assam, 7 The Mirror- Journal of History 156, 164-165 (2020),
https://www.cinnamaracollege.org/admin/files/6112a006eb273.pdf.
182
Sethi, Rajat, and Angshuman Choudhury. "Citizenship Determination Processes in Assam: The National
Register of Citzens (NRC) and Beyond." IPCS, 3 (2018), https://www.jstor.org/stable/pdf/resrep19604.pdf.
72
One important point that often goes unnoticed is the qualitative difference between
policies that need to be devised for economic migrants as opposed to a politically or
religiously persecuted minority in neighbouring countries. This is a vital difference that
the BJP tried to position itself on, and thus came up with the Citizenship Bill (which is
happening alongside NRC). This bill takes into account this very crucial difference
between the two kinds of migrants and was inspired by the bill tabled by the then Nehru
government, called the Immigrants Expulsion from Assam Act of 1950.
A lacuna in Indian policy has been the absence of a refugee policy to clearly
determine who is a refugee. The Citizenship Bill exercise is a step in that direction. A
clear refugee policy can help identify these qualitative distinctions better. The Northeast
protested against the bill and righfully so, because the region should not bear the burden
of any more migrants, be it economic migrants or religiously persecuted minorities.
There are also concerns about putting the identified illegal immigrants in detention
centers after the NRC process is over. However, such fears are unfounded. The setting up
of new detention centers have nothing to do with the NRC exercise and are primarily
efforts by the Foreigner Tribunals at building new centers for people who have been
identified as illegal migrants through their own process, since the existing five centers are
at full capacity. It is true that the documents citing ‘original inhabitants’ status are
shortcut methods that the NRC authorities adopted and is hence is deeply problematic.
The NRC process is not foolproof, and there are numerous NGOs on the ground
that is working hard to make this process easier for everyone. People whose names have
been left out of the NRC have several recourses: they can file objections, go- to various
courts and challenge the verdict, among others. Although systemic limitations remain, the
government is trying its level best to provide just legal recourse to the people of Assam.
Several long-term options are being considered parallel to the NRC process. One
proposed option is for indigenous people to have reservations in the state assembly so
that their voices are not crushed, regardless of how demography changes in the region.
The second option is the disenfranchisement of this group. A third option is to limit/
73
ration work permits. These solutions need to assess so that policies can take into account
not only the security angle but also the humanitarian aspect.
In conclusion, the NRC as a policy measure has helped bring closure to the
disillusioned indigenous people of Assam whose forebears sacrificed their lives during
the Assam Movement, and this development should thus be seen in a positive light.
CHAPTER 06
CONCLUSION AND SUGGESTIONS
“But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep”
-Robert Frost.
6.1 CONCLUSION:
Citizenship is a relationship between an individual and a state to which the

individual owes allegiance and in turn is entitled to its protection. Citizenship implies the
status of freedom with accompanying responsibilities. Citizens have certain rights, duties,
and responsibilities that are denied or only partially extended to aliens and other non-
citizens residing in a country. In general, full political rights, including the right to vote
and to hold public office are predicated upon citizenship. The principal grounds for
acquiring citizenship apart from international transactions such as transfer of territory are
birth within a certain territory, descent from a citizen parent, marriage to a citizen, and
naturalization. There are two main systems used to determine citizenship as of the time of
birth: jus soli, whereby citizenship is acquired by birth within the territory of the state,
74
regardless of parental citizenship and jus sanguinis, whereby a person, wherever born, is
a citizen of the state if, at the time of his or her birth, his or her parent is one.183
Citizenship has an intrinsic link to democratic politics. It involves membership of

an exclusive club- those who take decisions about the collective life of a given political
community. Their participation or lack of it plays an important role in determining how
far, and in what ways, it treats people as equals. 184 Hence the CAA has turned into a
political debate rather than a mere law enacted to provide citizenship to persons migrated
due to fear of religious persecution.
The present study was undertaken to understand the citizenship laws in India and
analyse the recent controversial amendment made to the Citizenship Act, 1955. The
Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11
December 2019. It amended the Citizenship Act, 1955 by providing a pathway to Indian
citizenship for persecuted religious minorities from Afghanistan, Bangladesh and
Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians, and arrived in
India before the end of December 2014.
It is a historical fact that trans-border migration of population has been happening

continuously between the territories of India and the areas presently comprised in
Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging
to various faiths were staying in the said areas of Pakistan and Bangladesh when partition
of India took place in 1947. The Constitutions of Pakistan, Afghanistan and Bangladesh
provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh,
Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of
religion in those countries. Some of them also have fears about such persecution in their
day-to-day life where right to practice, profess and propagate their religion has been
obstructed and restricted. Many such persons have fled to India to seek shelter and
continued to stay in India even if their travel documents have expired or they have
incomplete or no documents.
183
Britannica, The Editors of Encyclopaedia. "Citizenship". Encyclopedia Britannica, 3 Sep. 2020,
https://www.britannica.com/topic/citizenship. Accessed on 30 August 2021.
184
RICHARD BELLAMY, CITIZENSHIP A VERY SHORT INTRODUCTION 12 (Oxford University
Press 2008).
75
Under the existing provisions of the Act, migrants belonging to Hindu, Sikh,
Buddhist, Jain, Parsi or Christian communities from Afghanistan, Pakistan or Bangladesh
who entered into India without valid travel documents or if the validity of their
documents has expired are regarded as illegal migrants and ineligible to apply for Indian
citizenship under section 5 or section 6 of the Act.
The Central Government exempted the said migrants from the adverse penal
consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946
and rules or orders made there-under vide notifications, dated 07.09.2015 and dated
18.07.2016. Subsequently, the Central Government also made them eligible for long term
visa to stay in India, vide, orders dated 08.01.2016 and 14.09.2016. Now, it is proposed
to make the said migrants eligible for Indian Citizenship.
The Parliament has sole discretionary authority bestowed upon it under Article 11
of the Constitution of India to frame laws and regulate on the subject of citizenship. This
has been made explicitly clear in the Chapter 02. The CAA is alleged to be in violation of
Part II of the Constitution of India. The majority of provisions of Part II are mostly
applicable to citizens only expect Article 14 and 21 which is applicable to non- citizens as
well.
The Supreme Court has recognized right to equality under Article 14 as basic
feature of the Constitution of India.185 Article 14 applies to all people and is not limited to
citizens. The Principle of equality is not the uniformity of treatment to all in all respects.
It only means that all persons similarly circumstanced shall be treated alike both in the
privileges conferred and liabilities imposed by the laws. Equal law should be applied to
all in the same situation, and there should be no discrimination between one person and
another.
The Constitutional validity of CAA is questioned on the ground that it violates

Article 14 alleging that it provides citizenship on the basis of religion which in turn is
also against the principle of Secularism. But after analyzing the Act in Chapter 04 by
materials collected at hand the researcher is of the opinion that the CAA is not violative
185
Indra Swahney v. Union of India 1992 Supp (3) SCC 217.
76
of Article 14. It is on the basis of unjust past and historical background based on partition
of India which led to the exodus of large population leading to trans-border migration.
This trans-border migration has its influence on the contemporary political and regional
issues. Further in context of atrocious religious persecution which is still alive and
kicking, that such an amendment was legislated, which has now become a law. In light
of the law that have been analysed on reasonable classification is in firm view that it is
not violative of Article 14 of the Constitution of India. Hence the first hypothesis is
proved in affirmation.
The right to life and liberty enshrined under Article 21 of the Constitution of India
is not only a fundamental right but also a basic human right. Since the introduction of the
Citizenship (Amendment) Bill, 2016 and even after its enactment in 2019 an unrest is
sensed amongst the people who might be excluded from deriving the benefit from CAA
especially the Muslim. They are of the apprehension that all illegal immigrants other than
belonging to Hindu, Sikh, Parsis and Christian community will be sent to detention
centers and later sent to their country of origin. The researcher is of opinion that the fear
amongst the illegal immigrants (Muslims) of being dumped into detention camps which
may violate their basic human rights is in vain.
Firstly, India does have a legal obligation to uphold the principle of non-
refoulement, which plays a pivotal role in customary international law and to treat the
illegal immigrants with a minimum amount of dignity and respect, while not violating
any of the basic human rights at the same time. While implementation of CAA it seems to
be obvious that while granting citizenship to a certain set of people it violates no such
international principle. Secondly, to deport a large number of people found to be illegal
migrant to their respective country of origin is practically not feasible and it might cost
the government a lot to maintain such a huge number of people in detention camps on the
funds of the State. Hence the researcher proves the second hypothesis in affirmative that
the CAA does not violate the Article 21 of the Constitution of India.
The people of Assam are facing problems due to influx illegal migrants since many
centuries. After the bloody incident of the Nellie Massacre to put an end to the unrest
amongst the people of Assam and illegal migrants a Memorandum of Settlement was
77
signed between the student association and the former Prime Minister Rajiv Gandhi
called the Assam Accord, 1985.
From the analysis of all the facts and circumstances, it is clear that the newly
passed CAA has violated the provisions of the Assam Accord. The Constitutional validity
of CAA is also challenged on various grounds but for the people of Assam, security of
their identity matters more than the Constitutionality of the CAA. However, CAA is not
going to give shelter to any new illegal immigrants so therefore it can be expected that if
CAA gets enforced then it might bring a permanent solution to the issue of illegal
immigration forever. Hence the researcher proves the third hypothesis in affirmative that
the CAA does make the provisions of the Assam Accord, 1985 ineffective.
The researcher finally wants to conclude that the CAA is passed by the parliament
after much deliberations and discussion in both the Houses. The Act tries to provide new
life to people who have faced religious persecution and seeking shelter in India. The Act
is being criticized and large scale protests too have been made in opposition to the said
Act but the researcher is of the opinion that the CAA might prove to be an effective
enactment in solving the issue of illegal migration along with the enactment of NRC
throughout the nation. The CAA is challenged in the Supreme Court questioning its
constitutionality186; the said matter is subjudice, awaiting the decision of the Hon’ble
Supreme Court.
6.2 SUGGESTIONS
1. The parliament must be proactive and frame the rules for effective
implementation of the CAA and not delay it any further; as the delay may dilute
the object for which the Act was passed.
2. India is not a signatory to many International Conventions relating to migrants

and refugees like the Refugee Convention, 1951 and Statelessness Convention.
Hence it is high time India becomes a signatory to such conventions for better
186
Indian Union Muslim League v. Union of India, WP (C) 1470/2019.
78
protection of migrant rights and their concerns; and show that it is serious about
this issue beyond the narrow optics that are currently playing out right now.
3. The protests happening all over the nation against the CAA are turning violent in
context of Shaheen Bagh protest and a threat to spreading of pandemic. The
government must try to convince that the apprehension of the protestors
(Muslims) is in vain and the implementation of CAA shall not deprive them of
their citizenship.
4. The NRC has still not been implemented throughout India expect Assam, hence
apprehending that the lacunas in implementation of NRC presently will reflect in
future is misconceived. The Muslims must await the implementation of NRC and
not protest for future executive actions in the present.
5. The government must make an attempt to clarify all misunderstanding regarding

the implementation of the CAA and stop the politicization of the present Act; this
is going against the interest and security of the nation.
6. To seal the borders and effective patrolling near the borders to stop illegal
migration from Bangladesh into the State of Assam as promised in the Assam
Accord, 1985 clause 9.2.
7. The government must fulfill the promise made under clause 6 and 7 of Assam
Accord of constituting committees for safeguarding the cultural autonomy and
ethnicity of indigenous people of Assam; further strengthening the economy of
State of Assam and establishment of national education institutions for the overall
development of State of Assam and raising standard of living of Assamese people.
79

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1

“CRITICAL ANALYSIS OF THE CITIZENSHIP (AMENDMENT)

It is a historical fact that trans-border migration of population has been happening

According to the Indian Intelligence Bureau figures given to the Joint

In Pakistan, there is the acceptability of religious apartheid as per the Islamic

The minorities are disappearing fast in these three sub-continental Muslim-majority

The present study is undertaken to clear few of the apprehensions and

1.2 THE STATEMENT OF PROBLEM:

1.3 OBJECTIVE OF THE STUDY:

1. The primary objective of the study is to check into the constitutional

1.4 RESEARCH QUESTIONS:

1. Whether the CAA violates Article 14 of the Constitution by failing the

1.6 SOURCES OF INFORMATION:

1.7 SIGNIFICANCE OF THE STUDY:

The following hypotheses are formulated to be verified through the study:

2. The implementation of the CAA dilutes the Assam Accord, 1985.

1.9 SCHEME OF THE STUDY:

1.9.1 CHAPTER 1: INTRODUCTION

This chapter is concerned with explanation of the statement of problem, objective

1.9.2 CHAPTER 2: HISTORICAL BACKGROUND ON CITIZENSHIP LAWS IN

1.9.3 CHAPTER 3: THE CITIZENSHIP ACT, 1955 AND THE AMENDMENTS

1.9.4 CHAPTER 4: CRITICAL ANALYSIS OF THE CAAAND TEST OF

classification must be founded on the intelligible differentia which distinguishes persons

1.9.5 CHAPTER 5: THE CITIZENSHIP (AMENDMEMENT) ACT, 2019 AND

1.9.6 CHAPTER 6: CONCLUSION & SUGGESTIONS

1.10 LIMITATIONS OF THE STUDY:

1. The study is purely based on doctrinal research hence it is limited to the

3. The Constitutionality of CAA is challenged in the Supreme Court and the

HISTORICAL BACKGROUND ON CITIZENSHIP LAW IN INDIA

2.2 PRE-INDEPENDENCE PERIOD:

2.3 POST INDEPENDENCE PERIOD:

In 1947 India emerged as an independent nation after a concerted and sustained

The emergence of India as a sovereign entity meant a change in the political

In light of the heightened identity politics stemming from Partition addressing

The Constitution of India came into effect on 26 January 1950. 24 It is important to

2.4 CONSTITUENT ASSEMBLY DEBATES:

2.5 PART II OF THE CONSTITUTION:

Article 5 deals with the issue of ‘citizenship at the commencement of the

“(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

Article 6 focused on the “Rights of citizenship of certain persons who have

Article 7 deals with “Rights of citizenship of certain migrants to Pakistan”. It

During Partition, citizenship also operated as a tool of control in ascertaining the

Article 11 is a significant provision it vests in Parliament absolute power to enact

2.6 INTERNATIONAL LAW AND MIGRATION DUE TO RELIGIOUS

The existence of refugees dates back to time immemorial. Their internationally

However, since ‘persecution’ has not been defined in normative terms in

A similar definition, based on a decision by the House of Lords is that

To avoid the perils of restrictive interpretation, principles of International Human

In a doctrinal endeavor to develop interpretation of the term ‘persecution’ by

(ii) discriminatory treatment which lead to consequences of a substantially prejudicial

2.6.1 INTERNATIONAL STANDARDS ON FREEDOM OF RELIGION OR

A brief overview on the various freedom of religion or belief recognized by the

i. FREEDON TO ADOPT, CHANGE OR RENOUNCE A RELIGION OR

ii. FREEDOM FROM COERCION

The following Articles of ICCPR state right against coercion

vii. DISCRIMINATION ON THE BASIS OF RELIGION OR BELIEF/INTER-

Human Rights Committee general comment 22

2.6.2 THE RIGHTS OF REFUGEE UNDER THE CONVENTION RELATING TO

Other rights contained in the 1951 Convention include:

As mentioned above the constitutional provisions were only meant to determine

Further, the chapter gives a birdseye view of the International Conventions

THE CITIZENSHIP ACT, 1955