Starting from the basics, one should be very clear about the difference between a citizen and non-citizen. The population of a state can be divided into two categories:
Citizens And Non-citizens
- A citizen of a state enjoys all civil and political rights.
- A non-citizen, on the other hand, doesn’t enjoy these rights.
Under our Indian constitution, there are certain fundamental rights available only to its citizens, namely: right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to equality of opportunity in matter of public employment (Article 16); freedom of speech and expression, assembly, association, movement, residence and profession (Article 19); cultural and educational rights (Article 29 and 30); and right to vote and become members of the union and state legislatures.
Equality before the law or equal protection of the laws within the territory of India (Article 14) and protection of life or personal liberty (Article 21) are applicable to non-citizens as well.
The Indian Constitution doesn’t prescribe a permanent provision relating to citizenship in India. It simply describes categories of persons who are deemed to be citizens of India on the day the Indian constitution was promulgated on January 26, 1950, and leaves citizenship to be regulated by law made by the parliament. Article 11 of the Constitution confers power on the Parliament to make laws regarding citizenship. The Indian Citizenship Act, 1955, was enacted in exercise of this provision.
Provisions Under The Citizenship Act, 1955
The Act provides for acquisition of Indian citizenship in the following ways:
i) Citizenship by birth: Anyone born in India on or after January 1, 1950, would be deemed a citizen by birth. This limit was further amended to include those born between January 1, 1950 and July 1, 1987.
By the Citizenship Amendment Act, 2003, persons born after December 3, 2004, would be deemed citizens of India if either of the parents is Indian or one of the parents is a citizen of India and the other was not an illegal migrant at the time of the person’s birth.
‘Illegal migrant’ means a foreigner who has entered India without a valid passport or travel documents; or with a valid passport or travel documents who remained in the country beyond the permitted period of time.
ii) Citizenship by descent: A person born outside India shall be deemed as a citizen of India if either of the person’s parents was a citizen of India at the time of their birth, provided that the birth is registered within one year of its occurrence or commencement of the Act, whichever is later, at the Indian consulate.
iii) Citizenship by registration: A person may be registered as a citizen of India if the person is married to a citizen of India or has been a resident of India for five years immediately before making an application for registration.
iv) Citizenship by naturalisation: A person is granted a certificate of naturalisation if the person is not an illegal migrant and has resided in India for 12 months before making an application to seek the certificate. Of the 14 years preceding this 12-months duration, the person must have stayed in India for 11 years.
v) Citizenship by incorporation of territory: If any new territory becomes a part of India, the government of India shall specify the persons of the territory to be citizens of India.
If the central government is of the opinion that an applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any conditions specified to attain Indian citizenship.
Provisions In The Citizenship (Amendment) Act, 2019
The newly amended law provides for granting of Indian citizenship to Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Pakistan, Bangladesh and Afghanistan who came to India on or before December 31, 2014.
The law will not be extended to Rohingya Muslims persecuted in Myanmar, Shia and Ahmadiyya Muslims in Pakistan, Hazaras, Tajiks and Uzbeks in Afghanistan, Tamils in Sri Lanka, and atheists in Bangladesh.
Why Citizenship Amendment Act Unconstitutional ?
Last December (2019), the Indian Parliament passed the Citizenship Amendment Act (CAA), which gives non-Muslim minorities originally from neighbouring countries (Bangladesh, Afghanistan and Pakistan) a path to citizenship. There were also talks of the government introducing a registry of citizenship across the country, widely known as National Register of Citizenship (NRC).
The NRC process has already taken place in the northeastern state of Assam, leaving hundreds and thousands of people at risk of statelessness. The CAA, combined with the proposed nationwide NRC, risks disenfranchising Muslims across the country as it provides a pathway to citizenship for non-Muslims but has no remedies for Muslims caught up in NRC processes.
In August 2019, the NRC was published in the northeastern state of Assam. This process led to the disenfranchisement of about two million people. Soon after, there were fears of how this exercise might affect the rest of India, as India’s ruling party, the BJP (Bharatiya Janata Party), announced that it would implement such a registry throughout the country.
A few months later, in mid-December, the Indian Parliament passed the Citizenship Amendment Bill (now CAA or Citizenship Amendment Act), which essentially introduced a religion-based clause to existing Indian citizenship laws by giving minorities from neighbouring Muslim majority countries — Afghanistan, Bangladesh and Pakistan — a faster path to citizenship. However, it explicitly excludes Muslims. In part, this measure was intended to remedy the unanticipated inclusion of many Bengali Hindus and other minority faiths in the NRC, thereby providing them a path to citizenship.
But such a move is clearly discriminatory against Muslims and counter to Article 15 of the Indian Constitution, which prohibits discrimination on the basis of religion, caste, race, sex and place of birth. Since this development, there have been wide protests across India where, in many instances, protesters have faced police brutality, with violence perpetrated even inside university campuses especially in Jamia and AMU where police illegally entered in University campuses, and brutally tortured and beat up the students with stun grenades and expired tear gas shells.
In February, there were episodes of anti-Muslim violence in Delhi that a leading scholar of Hindu-Muslim violence in India described as a ‘mini-pogrom.’
These measures are violation of the secular foundations of the Indian constitution and a means to weaponise citizenship. There is a historical context that has made citizenship a contested and controversial process in India. After the Partition in 1947, people in the territory of India were essentially eligible for birthright citizenship. Hindu refugees coming in from Pakistan, however, often had to deal with citizenship challenges.
Almost 40 years later, in 1986, the Indian Parliament passed a law in which, to be eligible for citizenship, at least one parent had to be Indian. Nevertheless, it was during the early 2000s in the BJP’s first term in office that the notion of classifying migrants and refugees based on religion was set in motion.
Legal experts say that the new citizenship law violates the fundamental right under Article 14 of the Indian constitution that guarantees equal protection of laws, even to the aliens, in the territory of India.