Government fails to establish the legality of the Citizenship (Amendment) Act, 2019

[dropcap]O[/dropcap]N December 20, 2019, the Press Information Bureau (the "PIB"), the nodal agency of the Indian government that disseminates information about government policies, published a list of Frequently Asked Questions ("FAQs") on the Citizenship (Amendment) Act, 2019 (the "CAA"), via Twitter. Although the government, through these FAQs, has made an obvious attempt to justify and establish the legitimacy of the CAA, they are far from it.

Over the week, much has been written by numerous commentators illustrating why the CAA is unconstitutional. (Amongst others, see here and here). In this Article, I demonstrate how these FAQs fail to prove otherwise.

At the outset, it is important to understand the essence of the CAA. Fundamentally, the CAA does the following:

• protects six communities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from three countries (Afghanistan, Bangladesh and Pakistan), by not deeming them as illegal migrants;
• offers a fast-tracked mechanism to these six communities from these three countries to acquire citizenship;
• to avail the benefits of CAA, these six communities from these three countries, must have come to India prior to December 31, 2014.

In this backdrop, I have attempted to examine and comment upon each of the FAQs and the government responses:

Question 1: Why shouldn't Baluchis, Ahmediyas in Pakistan, Rohingayas in Myanmar not be considered for this kindness?

Government's Response: The CAA has not stopped any foreigners of any country from applying for Indian citizenship under The Citizenship Act, 1955. Baluchis, Ahmediyas & Rohingayas can always apply to become Indian citizens as and when they fulfil the qualifications provided in the relevant sections of The Citizenship Act, 1955.

Comment:

The CAA accords special treatment to the six listed communities from the three listed countries, by making them eligible for Indian citizenship after a waiting period of just six years. Under The Citizenship Act, 1955, however, Baluchis, Ahmediyas and Rohingyas (for no other reason other than their religion), have to wait for a period of 11 years, before being considered for Indian citizenship. Why should the Muslim community wait for a longer duration than the other listed communities? Evidently, there is no other reason for this discrimination, other than the fact that they are Muslims.

By introducing a religious facet into the citizenship acquisition process, the CAA violates Article 14 of the Constitution that guarantees equality amongst all the people, irrespective of whether they are citizens or non-citizens as well as the essence of secularism, a tenet of the basic structure of the Constitution.

Question 2: In what way does it benefit Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from these three countries?

Government's Response: All legal migrants (whose travel documents are complete) including the minority communities from three countries were and are and will continue to be eligible to apply for Indian citizenship if they fulfil the qualifications laid down in The Citizenship Act, 1955. The CAA has not changed this situation whatsoever. Only some migrants from these communities and countries will benefit from the CAA if they have incomplete or no documents or their documents have expired.

Comment:

The real question that must be addressed is why at all only certain illegal migrants from certain communities and certain countries must benefit from the CAA? As mentioned above, there appears to be a deliberate attempt to exclude Muslims from the CAA, just because they are Muslims and to relegate them to a status that is inferior to the other communities. This is India's first attempt to enshrine religion as an integral part of citizenship law. If this is allowed, the government sets an extremely dangerous precedent, and there is every chance that the government will, with impunity, start passing many more legislations that discriminate on the basis of religion.

Question: Doesn't India have an obligation under the UN to take care of refugees?

Government's Response: Yes it does. And it is not shying away from it. There are more than two lakh Sri Lankan Tamils and Tibetans in India and more than 15,000 Afghans, 20,000-25,000 Rohingyas and a few thousand other refugees of different nationalities presently in India. It is expected that, someday, these refugees will return to their homelands when conditions improve there.

Comment:

Echoing the government's thoughts on this, yes, India does have an obligation to take care of refugees. However, for this, the government must enact a well-crafted and comprehensive refugee-protection framework to protect all refugees, irrespective of religion. The CAA, in its present form, does nothing to address the refugee situation. It is a mala-fide piece of legislation that intends to offer citizenship to illegal immigrants belonging to select communities from select countries, arbitrarily.

Further, the government's elucidation that it will not consider granting fast-tracked citizenship to refugees from certain communities, because it expects that these refugees will return to their homelands when conditions improve there, is absurd, to say the least. The government, without proffering any evidence, makes a peculiar assumption that India is the natural motherland for the six listed communities, and that the other persecuted minorities will at some point return to their theocratic homelands.

Question: Will illegal Muslim immigrants from these three countries be automatically deported under this law?

Government's Response: No. The CAA has absolutely nothing to do with the deportation of any foreigner from India. The deportation process of any foreigner irrespective of his religion or country is implemented as per the mandate of the Foreigners Act, 1946 and/or The Passport (Entry into India) Act, 1920. These two laws govern entry, stay, movement within India and exit from India of all foreigners irrespective of their religion or country. Therefore, the usual deportation process would apply to any illegal foreigner staying in India.

Comment:

While the CAA has nothing to do with deportation of any foreigner from India, combined with the proposed all-India National Register of Citizens (NRC) that the government has vouched to implement, it will create a large base of communities excluded from the CAA, that will come under the radar of, and become targets for deportation, under the Foreigners Act, 1946 and/or The Passport (Entry into India) Act, 1920. This invariably will constitute the expressly excluded community – the Muslims.

Question: Does the CAA affect Indians? (Hindus, Muslims, anyone)?

Government's response: No, it has absolutely nothing to do with any Indian citizen in any way. Indian citizens enjoy Fundamental Rights conferred on them by the Constitution of India. No statute including the CAA can abridge or take them away. There has been a misinformation campaign. The CAA does not affect any Indian citizens, including Muslim citizens.

Comment:

To begin with, it is important to internalize the fact that not just Indian citizens, but also non-citizens are entitled to the fundamental right to equality under Article 14 of the Constitution. Therefore, given that the CAA discriminates against non-citizens from specific communities, it is manifestly unconstitutional – whether or not it affects Indians.

Further, although the CAA per se does not affect Indian citizens, it cannot be read in isolation from the NRC. The viability of the NRC in itself is altogether a different subject, which I will discuss in another post. The CAA, when combined with NRC, will specifically affect select Indian Muslims, as they will not be able to avail CAA's benefits, if they cannot prove their citizenship under the NRC. However, if the other listed communities are unable to prove their citizenship under the NRC, the Citizenship Act, 1955, along with the CAA, may still enable them to prove their citizenship (if they fulfil other criteria listed in the CAA).

Moreover, given that the government appears to have no qualms of granting citizenship on the basis of religion, there is every chance that the government will introduce religion to exclude people from the prospective NRC as well.

Question: What about Sri Lankan Tamils?

Government's Response: India has provided citizenship to 4.61 lakh Tamils of Indian origin after signing PM level agreements in 1964 and 1974. Presently 95,000 Sri Lankan Tamils are living in Tamil Nadu on Central and State Government subsidies and grants. They can apply for Indian citizenship whenever they become eligible.

Comment:

It is laudable that the Indian government, under the Congress, has in the past, provided citizenship to lakhs of Tamils of "Indian origin." However, this does not justify the exclusion of "Sri Lankan" Tamils, from the purview of the CAA. It does not matter what the executive branch of the government did in the past or intends to do in the future vis-à-vis a particular community. When a legislation is passed by the Parliament, it cannot and should not discriminate on the basis of religion, and CAA does just this.

Ostensibly, the objective of the CAA is to protect persecuted minorities. To fulfil this objective, there is absolutely no reason as to why the government must include some persecuted communities, and exclude some. Sri Lankan Tamils, a community systemically persecuted in Sri Lanka, ought not to have been excluded from the CAA.

One of the plausible reasons for excluding the Sri Lankan Tamils from the CAA, might be on account of the current government's political imperatives. Given that Tamil Nadu is one such state is which BJP has, over the years, failed to make inroads, it perhaps does not want to risk alienating the Tamil-majority state even further.

Question: Why only these three countries? And why only religious persecution of above-notified denominations?

Government's Response: The CAA deals with persecution on religious lines in three neighbouring countries where the Constitution provides for a specific State religion. Followers of other religions have been persecuted in these three countries. The Act in very focussed and provides a remedy for a particular situation in which some foreigners of these six minority communities find themselves.

Comment:

Demonstrably, the CAA is arbitrary in picking these three specific countries only. The Citizenship (Amendment) Bill, 2019, in its Statement of Objects and Reasons, provides that one thing that is common to these three countries is that the constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. If this is the case, why exclude Sri Lanka, which also has an official state religion – Buddhism.

Further, the Government has proffered no explanation as to how the foreigners of the six listed communities have faced persecution differently than the foreigners of the other excluded communities; and why these six listed communities deserve preferential treatment over the other excluded communities. Evidently, the CAA is unconstitutional.

Question: Does this mean that Muslims from these three countries can never get Indian citizenship?

Government's Response: Muslims from these three and all other countries can always apply for Indian citizenship and get it if they are eligible. The CAA has not stopped any foreigner from any country from taking citizenship of India provided he meets the existing qualifications under the law. During the last six years, approximately 2830 Pakistani citizens, 912 Afghani citizens, and 172 Bangladeshi citizens have been given Indian citizenship.

Comment:

As elaborated above, although Muslims from all the countries can apply for Indian citizenship under The Citizenship Act, 1955, it is unconstitutional to arbitrarily fast track the citizenship process for specific communities, while excluding some, such as Muslims.

Further, although in the past, citizens from Pakistan, Afghanistan and Bangladesh have successfully acquired Indian citizenship, in the future, combined with the NRC, CAA has a draconian effect of excluding Muslims from acquiring Indian citizenship.