The Poisonous Law: The Citizenship Amendment Act 2019

Dr Narender Nagarwal

The contentious Citizenship Amendment Act 2019 hereinafter referred as CAA recently
passed by the Indian Parliament not merely poisonous, discriminatory, divisionary but also
against the foundational philosophy of Constitution of India. The CAA fundamentally
discriminatory and has been enacted aiming to target India’s largest minority community
i.e. Muslims. It is to be noted that the principle Act i.e. The Citizenship Act 1955 provides
five ways of acquiring Indian citizenship, viz-Birth, Descent, Registration, Naturalisation
and Incorporation of some territory into India. Shockingly the latest CAA seeks to grant
citizenry rights to religious minorities of neighbouring countries on the basis of religion,
which is fundamentally impractical and also against the Article 14 of the Indian Constitution.
The “reasonable classification” defence taken by the government not tenable under the eyes
of law. Rather it is not “reasonable classification” but “class legislation” hence
fundamentally wrong and unconstitutional. Moreover, the CAA also hits Preamble, Article
15, 25 , 29 and 30 of the Indian Constitution besides Article 51C and Article 253 that makes
an obligation to India to respect international law in its true spirit.

If unpinning the very motive of CAA, it is nothing but face saver for the government, as first
test of NRC exercise in Assam has been failed brazenly, now government want to impose
CAA which is also against the Assam Accord of 1985. The certain provisions of the CAA
are direct onslaught on cultural and ethnic identity of Assam people. In India under the
Assam Accord, only those Bangladeshis who came into Assam before March 1971 would
be granted citizenship under the Citizenship Act. But CAA will make people of six
religions – Hindus, Sikhs, Christians, Parsis, Buddhists and Jains – who came from
Pakistan, Afghanistan and Bangladesh Indian citizens, provided they have lived in India
since before 2014. The BJP government justifies this discrimination by saying that
Muslims did not come into India due to persecution, whereas people of other religions
did. But this is only a pretext. The real reason is that the BJP knows that Muslims will
vote against them in elections, and so wishes to deny them citizenship (which carries
voting rights).
Also, what is overlooked is that many Muslims in Pakistan – Shias, Ahmadiyyas, etc. –
are also persecuted there, and may come to India to avoid persecution. While by a
constitutional amendment Pakistan has declared Ahmadiyas to be non-Muslims, the
Kerala high Court has declared them Muslims, and Ahmadiyas regard themselves
Muslims. However, they are treated horrifically in Pakistan. Many Assamese are
protesting because they do not want any immigrants in Assam, whether Muslim or non-
Muslim, and object to citizenship being given to any immigrant. Others are objecting to
the CAB for other reasons. The whole of Assam is in flames, and in many places the army
has been called. The truth is that many Bangladeshi Muslims have been living in Assam
for decades, though they may not have come here legally. Many were even born in Assam.
They have no roots now in Bangladesh. Where are they to go if deported? Bangladesh
has said it will not accept them. This is a humanitarian problem, not just a legal one.

It may be noted that under the Indian constitution while certain rights, like those
mentioned in Article 19, are available only to citizens, others like the right to equality
mentioned in Article 14 and the right to life and liberty mentioned in Article 21 (which
has been interpreted by the Supreme Court to mean the right to live with dignity) are
available to all persons. A non-citizen is certainly a person, and hence is also entitled to
those rights. In National Human Rights Commission vs State of Arunachal Pradesh, 1996,
the question was about Chakma refugees, who were undocumented immigrants from
Bangladesh. The court observed that the fundamental right to life and liberty guaranteed
by Article 21 of the constitution is also available to Chakmas, though they were not Indian
citizens. In light of that, the CAB is unconstitutional as it violates both Articles 14 and
21 of the constitution.

Since Independence, India has maintained its global position as world leader to protect
human rights, crime of apartheid, minorities rights and social justice. Shockingly, the CAA
provisions purely contrary to India’s consistent global position with respect to human rights
and minorities rights, hence India has lost its global image as leader of third world nations
and champion of human rights after promulgation of draconian CAA. The impugned law
also hit severely many provisos of international law, where India has given its ratification
and obtained its glorious image as leader of third world nations. The current form of CAA
if implemented would definitely push India into darkness, anarchy and extreme form of
lawlessness. The CAA is extremely dangerous for the India’s unity, diversity and its secular
identity and also hitting the doctrine of Basic Structure as propounded by Supreme Court in
Keshvanand Bharti (1973) case, hence it is ultra-vires ab-initio. This CAA is also against
the constitutional ethos of establishing an egalitarian society and it will definitely push the
country towards majoritarian state. In nutshell-CAA has potential threat to change the basic
and primary character of Indian state-Democratic, Secular Republic of India. The main
drawback of CAA is that this Act primarily exclusionary in nature and has been enacted
aiming to target Muslims, further it also violates the secular principles enshrined in the
Constitution of India as Religion can’t be ground of granting citizenship. The Constitution
of India explicitly prohibits religious based discrimination (under Article 14, 15 and 25)
against its citizens, and guarantees all persons equality before the law and equal protection
of the law. But whatever mentioned in the Bill is highly deplorable and implausible being a
scholar in law.

How CAA Hammering the International Law

The Citizen Amendment Act, 2019 of India is an outrightly sectarian Bill, which will change
the definition of illegal immigrants. The government seeks to amend it in order to facilitate
to grant citizenry rights to non-Muslims immigrants from Pakistan, Bangladesh and
Afghanistan who are of Hindu, Sikh, Jain, Parsi, Buddhist and Christian extraction and who
had migrated to India without valid travel documents or the validity period of whose
documents had expired during their stay in India. These people were compelled to seek
refuge in India owing to religious persecution or fear of religious persecution in their
countries of origin. The CAA has its own peculiar contradictions and can’t stand under the
intense legal scrutiny. For eg. CAA classification not reasonable as mandated to qualify
Article 14 of the Indian Constitution. The government has no answer why religious
minorities in Muslim sects such as Shias, Baloch and Ahmediya, whose members had been
facing utmost religious persecution in Pakistan, Bangladesh and Afghanistan had been
excluded. Further, the government has no answer why persecuted groups from other
neighbouring countries like Rohingyas from Mynamar, Madhesis from Nepal, Tamil Elam
from Sri Lanka and Muslims from China conspicuously ignored from idea of “secularity,
progressiveness and inclusivity” from the current Citizenship Amendment Act 2019 which
violates the Article 3 of Convention on Torture, 1984 that prohibits parties from returning,
extraditing, or refouling any person to a state where there are substantial grounds for
believing that he would be in danger of being subjected to torture” which India has signed
on 14 Oct 1997 and are bound by Article 51(c) of the Indian Constitution which says to
foster respect to international law and treaties…” read with Article 253 which talks about to
give effect to international agreement. Although it is not ratified but it come under the
customary law, hence should be follow and if not followed by the signatory parities then
will violates the principle of International law i.e. jus cogens and obligatio erga omnes.

In Article 2(1) of ICCPR, 1966 it is clearly mentioned that 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 race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status and hence through Article 26, it is to be ensure
that the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground which India has ratified on 10 April 1979
and come into force from 10 July 1979 onwards. The above-mentioned Directive Principles
of State Policy (DPSP) in Article 51 (c) protects the rights of the citizens and are
fundamental in the governance of the country. It is hereby necessary to say that the basic
feature of the constitution is to maintain harmony between fundamental rights such as
Article 14 (The state shall not deny to any person equality before the law and equal of
protection of laws within the territory of India), Article 21 “No person shall be deprived of
his life” and DPSP Article 51 (c) which state that the State shall endeavour to foster respect
international law read with Article 253. Both Fundamental Rights and DPSP as per the
Supreme Court judgment in Minerva Mill case, are complementary and supplementary to
each other and are the basic structure of the Indian constitution which if violates through
any amendment law will automatically violates the founding principles of constitution and
make that law unconstitutional and void under the present context of legal jurisprudence.
Indian Constitution is based on the pillars of Natural Justice, which is a revised version
of natural law. Starting from the Preamble, the words Justice is inclusive of social, economic
and political and equality of status and thoughts, etc. prove that natural law theory and
principles are there in the Indian Constitution and followed by the Indian Judiciary in their
Judgment which can be evident from Menaka Gandhi Case in which the court applies the
natural law theory of jurisprudence. It is very necessary to examine jurisprudential approach
regarding the legality of the said bill. In this respect, Rudolf Stammler the main thinker of
the revival of natural law theory in the contemporary world, rightly said that “the purpose
of law is not to protect the will of one but to unify the purpose of all” According to him the
law of nature means “Just Law” which harmonies the purpose in society. For him, a just law
was the highest expression of man social life and aims at preservation of freedom of
individuals. According to him, the two fundamental principles necessary for a just law were:
a) Principles of respect
b) The principles of community participation

The contentious CAA also attenuates the norm of international human rights law and refugee
law. Though India has neither ratified the Refugee Convention (1951) nor its 1967
Additional Protocol, nevertheless, it has extended constitutional protection to refugees
without any religious discrimination. India became a member of the Executive Committee
of the High Commissioner's Programme (EXCOM) in 1995 which supervises the material
assistance programme of United Nations High Commissioner for Refugee (UNHCR).
Membership of the EXCOM indicates greater commitment to refugee jurisprudence. Apart
from this, India voted affirmatively to adopt the UN Declaration of Territorial Asylum in
1967 and accepted the principle of non-refoulma as envisaged in the Bangkok Principles
1966, and acknowledged as jus cogens which is binding on all nation-states irrespective of
fact whether state has signed the refugee convention or not. Being a signatory to ICCPR,
ICESCR, CEDAW and most significantly the Convention against Torture (CAT) 1984,
India is under an obligation to provide asylum to a person who has any fear of persecution
irrespective of religion of the person. The present form of CAA also strikes on International
Convention on the Elimination of All Forms of Racial Discrimination which was signed in
1965 and entered into force in 1969. Basic premises of the ICERD 1965 is to build a world
order that nullifying or impairing the any form of citizenry discrimination, denial of
religious and cultural freedom and ensure recognition human rights of all religious and
linguistic groups.

Concern of National Security

The CAA is against the national security primarily on three main reasons-firstly, the CAA
has assured to refuge illegal migrants from Bangladesh, Pakistan and Afghanistan who are
Hindu, Sikh, Buddhist, Jain, Parsi or Christian, but omits Muslims. I believe that government
has not undertaken the assessment what would be the situation of religious minorities in
these countries after passing of this prickly legislation? There is very likelihood that
onslaught against religious minorities in these countries may further intensify after passing
of CAA. The potential threats of deteriorating relations with bordering countries can’t be
ruled out after promulgation of CAA. India’s relation has always been strained with Pakistan
and Sri Lanka but Bangladesh should not slipped away from trusted partner of India in
SAARC region. The CAA would affect business ties, trade and medical tourism sector and
diplomatic relations would also suffer badly with neighboring countries. Secondly, the
major concern of CAA is that Pakistan’s ISI may exploits the legal framework provided
under the CAA to push their “own people” into India. This biggest national security threat
arising out of CAA can’t be ignored as RAW has already placed its concern before the Joint
Committee of Parliament which scrutinized the lapsed Citizenship Amendment Bill 2016.
The concern of India’s premier intelligence agency are quite legitimate and valid, there is a
great probability that India’s neighboring countries may push their spies in the name of
“persecuted minorities” to India aiming to wider the intelligence tent of ISI network in
Indian sub-continent.

Thirdly, the CAA forcing the Indian citizens to submit a false declaration if they wanted to
acquire Indian citizenship. These are the people who were left out in the Assam NRC and
majority of these people are Bengali Hindus. Many of those who have had difficulty to
proving their citizenship in Assam are Muslims who emigrated from Bangladesh and have
been living in India for multiple generations. Don’t forget that Assam geographical situation
and its close pores border with Bangladesh has provides the opportunity to settle as
economic emigrants in Assam region before independence and after the independence
majority of emigrants who settled in Assam are Bengali Hindus. The excluded applicants of
NRC are Indian but they are not possessing documents, hence to give citizenship to a large
number of excluded persons the CAA stress on first the citizenship seekers declare himself
a member of religious minority group either from Bangladesh, Pakistan or Afghanistan and
also proved that he has been a victim of religious persecution in these countries. Till recently,
all excluded people were asserting that they are Indian but their name was missed in the
NRC does not make them all are foreigners. To add their name in NRC and to acquire Indian
citizenship they have to declare themselves as foreigner first, it is really bizarre. This forced
falsification by the State may create another peculiar problem as why excluded people
should submit false affidavit/documents to show that they are foreigners in order to obtain
Indian Citizenship when they are very much Indian like others. The apprehension of
deportation, denial of citizenry rights, harassment at detention centre and state sponsored
discrimination may lead to another problem of alienation, separatism and radicalisation of
North East region. Hence, it can be safely stated that current form of Citizen Amendment
Act 2019, which has been passed by both the Houses of Parliament on 12 Dec 2019 is
extremely dangerous for the nation’s secular identity since this bill is against the
Constitution philosophy of pluralism, diversity, minorities rights and freedom of religion
type core principles.

CAA and India’s Global Embarrassment

India's international humiliation continues since moving the contentious Citizenship Law
from parliament. Since the Lok Sabha endorsed the Bill, United States has staunchly
opposed this discriminatory, divisionary and anti-Muslim Act. A federal panel on religion
has urged the United States to weigh sanctions against India's Minister of Home Affairs
Amit Shah if India adopts legislation that excludes Muslims from a path to citizenship
for religious minorities from its neighbours. In the meantime, Japanese Prime Minister
Shinzo Abe's has cancelled his visit to India which was scheduled to be held in Guwahati
next week, amid violent protests in the northeast over the Citizenship (Amendment) Act. A
Japanese media report had said he may consider canceling the visit amid violent protests.
On Wednesday, protesters pulled down hoardings erected in central Guwahati to welcome
Mr Abe. After Japan, Bangladesh Foreign Minister AK Abdul Momen and the country's
Home Minister called off their visits to India in the midst of the agitations in the northeast.
Bangladesh Home Minister Asaduzzaman Khan, who cancelled his visit, was scheduled to
visit Meghalaya for an event today. After US, now United Nations has condemned this
draconian Citizenship Amendment Act 2019 and asked for its review immediately. The
United Nations Human Rights (UNHR) office has termed the India’s Citizenship
Amendment Act 2019 as “fundamentally discriminatory in nature” for leaving out Muslims
and called for an immediate review. “We are concerned that India’s new Citizenship
(Amendment) Act 2019 is fundamentally discriminatory in nature,” UNHR spokesperson
Jeremy Laurence said in Geneva. The Office of the UNHCR hopes that new law will be
reviewed by the Supreme Court of India and hope it will consider carefully the compatibility
of the law with India’s international human rights obligations.

Concluding remarks
In my academic life, I have never seen such a law that legitimize discrimination, but here by
dividing alleged migrants into Muslims and non-Muslims, the impugned Act explicitly and
blatantly, seeks to enshrine religious discrimination into law, contrary to our long standing,
secular constitutional ethos. While it is the job of legal experts to determine whether this
draft Bill now an Act violates the letter of the constitution, it seems certain to us that it
violates its spirit. For the reasons mentioned above, we call for the immediate withdrawal
of this passed Bill through court as unconstitutional and void as it violates the basic
structure of the Indian constitution i.e. secular character of constitution as decided in S.
R Bommai and Keshvananda Bharati case and as its replacement request for appropriate
legislation that will address the concerns of refugees and minorities in a non -
discriminatory manner.

(Author teaches at Campus Law Centre, Faculty of Law, University of Delhi, India)

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